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

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

Docket No. 09-1167
Issued: February 19, 2010

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 March 31, 2009 appellant filed a timely appeal from a March 20, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim for an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has more than a 27 percent permanent impairment of each
upper extremity for which she received schedule awards.
FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated June 14, 2006, the
Board set aside an August 10, 2005 Office decision granting appellant a schedule award for a

four percent permanent impairment of each upper extremity.1 The Board found that the medical
opinions from appellant’s attending physician and the Office medical adviser failed to conform
to the provisions of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides) and remanded the case for further development to
determine the extent of any permanent impairment of the upper extremities. The findings of fact
and conclusions of law from the prior decision are incorporated by reference.
In a report dated April 27, 2005, Dr. Weerasak W. Lima, a Board-certified orthopedic
surgeon, measured extension and flexion of the wrists as 20 degrees, supination as 45 degrees
and pronation as 80 degrees. He diagnosed bilateral arthritis of the wrists and recommended
continued limited-duty work.
On September 8, 2006 an Office medical adviser determined that appellant had a two
percent impairment due to sensory loss of the bilateral upper extremities. Utilizing Dr. Lima’s
range of motion findings from the April 27, 2005 report, he determined that she had a 24 percent
impairment due to loss of range of motion of the wrists and a 2 percent impairment due to loss of
supination. The Office medical adviser combined the findings and concluded that appellant had
a 27 percent permanent impairment of each upper extremity.2
By decision dated October 3, 2006, the Office granted appellant schedule awards for a 27
percent permanent impairment of the right and left upper extremities.3 It subtracted the four
percent previously paid for each upper extremity. The period of the award ran for 143.52 weeks
from April 28, 2005 to January 27, 2008.
On November 6, 2008 the Office advised appellant that if she claimed a greater
permanent impairment she should submit an impairment evaluation from her attending physician
in accordance with the A.M.A., Guides. In an impairment evaluation dated November 10, 2008,
Dr. Lima diagnosed bilateral traumatic tenosynovitis and arthritis of the hands and wrists. He
noted that appellant’s symptoms were essentially unchanged since April 2005. Dr. Lima
measured range of motion of the right wrist as 0 degrees flexion, 40 degrees extension, 60
degrees supination and 85 degrees pronation. For the left side he measured 20 degrees flexion,
40 degrees extension, 45 degrees supination and 85 degrees pronation. Dr. Lima noted that
appellant had a radial deviation deformity bilaterally and stiffness of the fingers. He provided
grip strength measurements obtained on three attempts.

1

Docket No. 05-1920, issued June 14, 2006. On April 30, 1999 appellant, then a 47-year-old flat sorting machine
operator, filed an occupational disease claim alleging that she sustained tendinitis due to factors of her federal
employment. The Office accepted her claim for bilateral tendinitis of the wrists. Appellant stopped work on
April 22 and returned to modified work on July 6, 1999. By decision dated November 28, 2001, the Office
determined that she had no loss of wage-earning capacity based on its finding that her actual earnings as a modified
flat sorting machine operator effective July 6, 1999 fairly and reasonably represented her wage-earning capacity.
2

The Office medical adviser also recommended that the Office expand appellant’s claim to include bilateral tardy
ulnar nerve palsies and a bilateral aggravation of post-traumatic arthritis of the wrists.
3

Appellant retired in October 2006.

2

On November 17, 2008 Dr. Lima opined that appellant had no impairment due to loss of
range of motion of the fingers. Citing Figures 16-28, 16-34 and 16-37 of the A.M.A., Guides,
relevant to determining impairments due to loss of range of motion of the wrist and forearm, he
concluded that appellant had a 57 percent permanent impairment of each upper extremity due to
her wrist impairment.
On December 5, 2008 the Office referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated January 7,
2009, Dr. Hanley noted that x-rays obtained in March 1999 revealed advanced degenerative disc
disease. He diagnosed “[a]ggressive synovial based arthritis of both wrists, right greater than left
with tenosynovitis of the hands but without loss of motion.” Dr. Hanley attributed the majority
of appellant’s problems with her hands to preexisting “progressive underlying rheumatological
disease” that might have been aggravated by her employment. For the right wrist, he found that
10 degrees dorsiflexion constituted an eight percent impairment,4 30 degrees volar flexion
constituted a five percent impairment,5 0 degrees ulnar deviation constituted a five percent
impairment6 and 15 degrees radial deviation constituted one percent impairment.7 For the left
wrist, Dr. Hanley found that 45 degrees dorsiflexion constituted three percent impairment,8 40
degrees volar flexion constituted three percent impairment,9 0 degrees ulnar deviation constituted
five percent impairment10 and five degrees radial deviation constituted one percent impairment.11
He found that appellant had full elbow pronation on both sides but 50 degrees supination, which
he found equaled one percent impairment.12 Dr. Hanley combined the impairments for loss of
range of motion and concluded that appellant had an 18 percent impairment of the right upper
extremity and a 12 percent impairment of the left extremity due to loss of range of motion. He
found that she had no ulnar neuropathy or ulnar motor atrophy and further noted that under the
A.M.A., Guides grip strength testing was not valid given her loss of range of motion.
On February 5, 2009 an Office medical adviser reviewed the findings by Dr. Lima and
Dr. Hanley. He found that appellant did not have more than the 27 percent permanent
impairment for each upper extremity previously awarded. The Office medical adviser related
that Dr. Lima’s finding of a 57 percent impairment of each upper extremity “would indicate [his]
determination was based on a combination of weakness, decreased wrist motion and flexion
extension, radial and ulnar deviation as well as supination and pronation.” He discussed
4

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

5

Id.

6

Id. at 469, Figure 16-31.

7

Id.

8

Id. at 467, Figure 16-28.

9

Id.

10

Id. at 469, Figure 16-31.

11

Id.

12

Id. at 474, Figure 16-37.

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Dr. Hanley’s January 7, 2009 report and noted that “he made a recommendation for a schedule
award based upon loss of range of motion, and he stated that there were no other methodologies
to provide a rating.”
In a supplemental report dated February 23, 2009, the Office medical adviser explained
that Dr. Lima improperly rated appellant for a loss of strength in the presence of decreased
motion and painful conditions. He stated:
“If I would have utilized Dr. Hanley’s physical examination findings of
January 17, 2009 I would have been in agreement with his calculations of 18
percent for the right and 12 percent for the left upper extremity. However, the
calculations that I made were based upon Dr. Lima’s examination, and her use of
the A.M.A. Guides, as stated, was not appropriate based primarily on [his]
strength measurements for the impairment calculation rather than [his] range of
motion measurements as referenced on page 474, Figure 16-37 and page 469,
Figure 16-31.
“It is certainly possible that the examination could have changed from Dr. Lima’s
examination of November 10, 2008 and Dr. Hanley’s examination of
January 7, 2009. However, these differences in range of motion were not
significant. The most important and only significant difference is related to the
strength measurements.
“Therefore, based upon the above, I would not make any recommendations of a
change from my previous recommendations of 27 percent impairment of each
upper extremity.”
By decision dated March 20, 2009, the Office denied appellant’s claim for an increased
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,13 and its
implementing federal regulations,14 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all

13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404.

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claimants.15 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.16
A claim for an increased schedule award may be based on new exposure or on medical
evidence indicating the progression of an employment-related condition, without new exposure
to employment factors, has resulted in a greater permanent impairment than previously
calculated.17 Where a claimant has previously received a schedule award and subsequently
claims an additional schedule award due to a worsening of his or her condition, the claimant
bears the burden of proof to establish a greater impairment causally related to the employment
injury.18
ANALYSIS
The Office accepted that appellant sustained bilateral tendinitis of the wrists due to
factors of her federal employment. By decision dated September 8, 2006, the Office granted
appellant a schedule award for a 27 percent permanent impairment of each upper extremity.
Appellant submitted November 10 and 17, 2008 reports from Dr. Lima in support of her
claim for an increased schedule award. Dr. Lima noted that her symptoms were unchanged since
April 2005 and provided range of motion findings for the wrist and forearm. He generally
concluded that appellant had a 57 percent impairment of each upper extremity but did not
explain his calculations pursuant to the A.M.A., Guides. As Dr. Lima did not explain the
protocols used in making the impairment determination, his opinion is insufficient to establish
the extent of her permanent impairment.19 Additionally, his range of motion findings did not
yield a greater extent of impairment than the 27 percent impairment of each upper extremity
previously awarded.20 Consequently, Dr. Lima’s report does not support that appellant has more
than a 27 percent permanent impairment of each upper extremity due to loss of range of motion.
The Office referred appellant to Dr. Hanley for a second opinion examination.
Dr. Hanley diagnosed synovial based bilateral wrist arthritis greater on the right largely due to
15

20 C.F.R. § 10.404(a).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
17

Linda T. Brown, 51 ECAB 115 (1999).

18

Edward W. Spohr, 54 ECAB 806 (2003).

19

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the
Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of
permanent impairment.
20

On the right side, Dr. Lima found 0 degrees flexion which equals a 10 percent impairment, 40 degrees
extension which equals a 4 percent impairment, 60 degrees supination which equals a 1 percent impairment of the
forearm, and 85 degrees pronation which yields no impairment. A.M.A., Guides 467, 474, Figures 16-28 and 16-27.
On the left side, 20 degrees flexion yields seven percent impairment, 40 degrees extension yields four percent
impairment, 45 degrees supination yields two percent impairment and 85 degrees pronation yields no impairment.
Id.

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progressive preexisting rheumatologic disease. He determined that 10 degrees dorsiflexion
yielded eight percent impairment,21 30 degrees volar flexion yielded five percent impairment,22 0
degrees ulnar deviation yielded five percent impairment23 and 15 degrees radial deviation yielded
a one percent impairment.24 For the left wrist, he found that 45 degrees dorsiflexion yielded
three percent impairment,25 40 degrees volar flexion yielded three percent impairment,26 0
degrees ulnar deviation yielded five percent impairment27 and 5 degrees radial deviation yielded
one percent impairment.28 He found that appellant had full elbow pronation on both sides but 50
degrees supination, which he found equaled one percent impairment.29 Dr. Hanley combined the
impairments for loss of range of motion and concluded that appellant had an 18 percent
impairment of the right upper extremity and a 12 percent impairment of the left extremity due to
loss of range of motion.30 He further noted that factors such as loss of grip strength should not
be considered given appellant’s restriction in motion.31
An Office medical adviser reviewed Dr. Hanley’s report and noted that Dr. Lima based
part of his impairment evaluation on loss of strength. He properly found that the A.M.A., Guides
precludes rating decreased strength in the presence of decreased motion that prevents the
application of maximal force in the region being evaluated.”32 The Office medical adviser
asserted that Dr. Lima’s current range of motion findings did not differ significantly from
Dr. Hanley’s and that the difference in the impairment determination was due to Dr. Lima’s loss
of strength measurements. He concurred with Dr. Hanley’s range of motion findings and opined
that appellant had no more than a 27 percent impairment of each upper extremity. There is no
probative medical evidence conforming to the A.M.A., Guides establishing that appellant has
more than a 27 percent permanent impairment of each upper extremity.

21

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

22

Id.

23

Id. at 469, Figure 16-31.

24

Id.

25

Id. at 467, Figure 16-28.

26

Id.

27

Id. at 469, Figure 16-31.

28

Id.

29

Id. at 474, Figure 16-37.

30

Impairment values due to loss of range of motion are added together. A.M.A., Guides 466. Dr. Hanley’s
combining of his findings, however, does not affect the outcome of the case as it would not show that appellant was
entitled to an award for a greater impairment.
31

Id. at 508.

32

Id.

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CONCLUSION
The Board finds that appellant has no more than a 27 percent permanent impairment of
each upper extremity for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 20, 2009 is affirmed.
Issued: February 19, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Omaha, NE, Employer
__________________________________________

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

Docket No. 19-0309
Issued: June 19, 2019

Case Submitted on the Record

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

JURISDICTION
On November 27, 2018 appellant filed a timely appeal from a November 2, 2018 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On August 27, 2018 appellant, then a 54-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral shoulder and neck conditions as a result
1

5 U.S.C. § 8101 et seq.

of her repetitive federal employment duties. She explained that on or about July 19, 2018 she
spent an entire eight-hour workday at her computer constantly reaching for the scanner. Appellant
also reported spending long periods of time on the telephone which would be cradled between her
head and shoulders so that she could type at the same time, causing extreme soreness to her neck
and shoulders. She further explained that her pain returned whenever she was sitting at her desk
in the same position. Appellant first became aware of her claimed conditions and their relationship
to her federal employment on July 19, 2018.
In an accompanying narrative statement, appellant reported that she was assigned to a new
division causing her workload to more than triple and resulting in stress which contributed to her
neck and shoulder conditions. She reported that she typically spent one to two hours daily printing
and scanning documents, however, after July 19, 2018, she spent six to seven hours daily
completing these same tasks. Appellant explained that she was assigned a number of new duties
until new employees could be hired. She reported that her repetitive employment duties caused
injury to her neck, bilateral shoulders, and upper back.
In medical notes and reports dated August 30, 2018, Dr. Jeffrey J. Jenkins, Board-certified
in family medicine, reported that appellant had complained of pain in the neck and upper back for
approximately one month. He reported that, at that time, her employment duties had changed and
she was spending several hours per day using a scanner. Appellant’s pain worsened throughout
the workweek and improved over the weekend. Dr. Jenkins diagnosed myofascial pain and
reviewed “images” of her workstation. He noted that the scanner was some distance from her
computer terminal, causing her to stretch her left arm excessively. Dr. Jenkins opined that it was
“highly likely” that appellant’s pain was caused by activities related to her employment. He
recommended a course of physical therapy and modification of her workstation.
In an August 31, 2018 note, Dr. Jenkins reported that appellant was evaluated on
August 30, 2018 due to complaints of neck and upper back pain. He diagnosed myofascial pain
and opined that it was “very likely” that her symptoms were directly caused by activities in the
course of her employment.
In a development letter dated September 19, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the type of medical
and factual evidence needed and afforded her 30 days to submit the necessary evidence. In a
separate development letter of even date, OWCP requested the employing establishment provide
comments pertaining to the accuracy of appellant’s occupational disease claim.
Appellant responded to OWCP’s request on October 11, 2018 and described her repetitive
employment duties which she believed caused her medical conditions.
In an October 15, 2018 statement from the employing establishment, appellant’s supervisor
agreed with her statements pertaining to her occupational disease claim. She discussed appellant’s
employment duties which she noted substantially increased in July 2018 when their district office
was converted into a division office. An official position description for appellant’s job as a
secretary was also submitted.

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Physical therapy notes dated September 6 through October 31, 2018 were also submitted
documenting treatment to appellant’s cervical region.
In a September 26, 2018 progress note Dr. Jenkins reported that appellant was evaluated
on August 30, 2018 for myofascial pain and that he had nothing to add beyond what was in the
medical record. He further reported that myofascial pain was the appropriate medical diagnosis
with an associated international classification of diseases (ICD)-10 code which was adequate for
the purposes of evaluation, treatment, coding, and billing. Dr. Jenkins reported that, if this was
not adequate, then he would recommend further evaluation by a physical medicine specialist.
By decision dated November 2, 2018, OWCP denied appellant’s claim finding that the
medical evidence of record failed to provide a firm medical diagnosis which could be reasonably
attributed to the accepted federal employment duties. It noted that the medical evidence submitted
contained a diagnosis of pain which was a symptom and not a diagnosed medical condition.
OWCP concluded, therefore, that the requirements had not been met for establishing an injury as
defined by FECA.
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,2 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.3 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.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

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).
5

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

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Rationalized medical opinion evidence is required to establish causal relationship.6 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.7
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.9
In support of her claim, appellant submitted medical notes dated August 30 and 31, and
September 26, 2018 from Dr. Jenkins. The reports of Dr. Jenkins are insufficient to establish her
claim as they fail to provide a firm medical diagnosis which can be attributed to her accepted
federal employment duties.10 The Board notes that Dr. Jenkins only diagnosed myofascial pain.
The Board has consistently held that pain is a general description of a symptoms and is not a firm
medical diagnoses.11 Lacking a firm diagnosis, Dr. Jenkins’ reports are of little probative medical
value.12
Appellant also submitted reports dated September 6 through October 31, 2018 from a
physical therapist documenting treatment for her conditions. However, physical therapists are not
considered physicians as defined under FECA and their opinions, therefore, are of no probative

6
See 20 C.F.R. § 10.110(a); M.M., Docket No. 18-1366 (issued February 27, 2019); John M. Tornello, 35 ECAB
234 (1983).
7

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

8

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

9

J.S., Docket No. 18-0726 (issued November 5, 2018).

10

E.W., Docket No. 18-1423 (issued March 19, 2019).

11

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain).
12

P.Y., Docket No. 18-1136 (issued January 7, 2019); see also Samuel Senkow, 50 ECAB 370 (1999).

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value.13 As such, this evidence is insufficient to meet appellant’s burden of proof to establish her
claim.14
For these reasons, the Board finds that there is no medical evidence of record establishing
a medical condition causally related to the accepted federal employment duties.15 As such,
appellant has not met her burden of proof.
On appeal, appellant argues that her physician disagreed with OWCP’s decision and would
not provide a diagnosis other than myofascial pain despite her request. The Board notes that it is
her burden to submit the evidence necessary to establish her claim for compensation.16 Appellant
further argues that her physical therapist provided a diagnosed medical condition of strain of
muscle, fascia, and tendon. As discussed above, physical therapy reports are of no probative value
as they are not signed by a qualified physician under FECA.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.

13
The term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. See 5 U.S.C. § 8102(2); M.M.,
Docket No. 16-1617 (issued January 24, 2017) (lay individuals such as physician assistants and physical therapists
are not competent to render a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000);
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved
through the submission of probative medical evidence from a physician).
14

P.C., Docket No. 18-1703 (issued March 22, 2019).

15

T.O., Docket No. 18-0139 (issued May 24, 2018).

16

C.S., Docket No. 17-1345 (issued May 24, 2018).

17

Supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2019
Washington, DC

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

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

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

6


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

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Appearances:
Coby Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 12-17
Issued: October 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2011 appellant, through his representative, filed a timely appeal from a
September 7, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied modification of his wage-earning capacity determination. 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 the case.2
ISSUE
The issue is whether appellant has established that his April 28, 2008 wage-earning
capacity determination should be modified.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument before the Board on February 6, 2012. The Board finds that his request for
oral argument was untimely as it was made more than 60 days following the filing of the appeal. See 20 C.F.R.
§ 501.5(b).

FACTUAL HISTORY
On February 12, 2003 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim, alleging that he sustained injury to his back and right wrist from slipping on stairs and
falling at work. OWCP accepted the claim for cervical, thoracic, lumbar and bilateral shoulder
strains, as well as multiple contusions and a fracture of the right fourth metacarpal as a result of
the work injury. It expanded acceptance of the claim in 2005 to include right shoulder
impingement.
In a letter dated August 1, 2007, the employing establishment offered appellant a
modified letter carrier position, with duties including answering telephones, scanning delivery
confirmation, as well as delivering express mail, as needed. The physical requirements for the
position were intermittent lifting and carrying less than 10 pounds, sitting, standing, walking and
climbing for four hours, as well as simple grasping and fine manipulation for eight hours. The
offer was effective August 11, 2007. The employing establishment did not indicate whether the
job offer was permanent or temporary.
Appellant was offered a different limited-duty position as of November 5, 2007. The
duties of the modified limited-duty assignment included, as needed, scanning delivery
confirmation, carrier endorsement, delivering express mail and casing mail. The physical
requirements included intermittently lifting and carrying less than 10 pounds for three hours,
sitting, standing, walking and climbing for three hours, as well as simple grasping and fine
manipulation for two hours. The effective date of the offer was November 5, 2007.
In an April 28, 2008 decision, OWCP found that appellant’s modified letter carrier
position, as described in the August 1, 2007 job offer letter, fairly and reasonably represented his
wage-earning capacity.
Appellant filed a claim for wage loss beginning June 18, 2008. After development,
OWCP denied his claim in an August 28, 2008 decision on the grounds that he failed to establish
that the wage-earning capacity decision should be modified.
Appellant filed another claim for wage loss for the period beginning from September 17,
2009, when the employing establishment withdrew his work as part of the National
Reassessment Process (NRP).
By decision dated December 29, 2009, OWCP denied modification of the wage-earning
capacity determination.
Appellant disagreed with the decision and requested an oral hearing before the Branch of
Hearings and Review. On July 13, 2010 OWCP’s hearing representative affirmed the
December 29, 2009 decision.
Appellant requested reconsideration on June 3, 2011.
submitted additional documentation.

2

Along with the request, he

A May 31, 1985 letter from the Labor Relations Department of the postal service stated
that “it is the position of the [p]ostal [s]ervice that neither the delivery [nor] the transportation of
Express Mail is exclusively letter carrier craft work.”
Appellant also submitted excerpts of the postal service regulations Handbook El-505,
which was dated December 1995.
An excerpt of Handbook EL-312, dated September 2001, described the process by which
the employees of the postal service were assigned to positions.
Appellant also submitted a document titled “Guidelines for City Letter Carriers in the
United States Postal Service,” published in January 2005, which detailed the scope of duties for
regular letter carriers.
In addition, appellant submitted medical reports dated June 23 and August 4, 2011 from
Dr. Fred Naraghi, a Board-certified orthopedic surgeon. In the reports, Dr. Naraghi diagnosed
appellant with L4-5 disc bulge, tarlov cyst with perineural sheath cyst, radiculopathy and right
sacroiliitis. He also requested a new magnetic resonance imaging scan in order to further
reassess appellant’s condition.
On September 7, 2011 OWCP denied modification of the loss of wage-earning capacity
(LWEC) determination, finding that appellant did not establish that the April 28, 2008 LWEC
decision was erroneous. The decision found that his limited-duty letter carrier position was not a
makeshift position and the wages earned by him in the position fairly and reasonably represented
his wage-earning capacity. The decision also noted that “while [appellant] provided new
medical documentation, the argument made by [appellant’s] representative was that the decision
was issued in error.”
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.3 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
FECA Bulletin No. 09-05outlines very specific procedures for light-duty positions
withdrawn pursuant to NRP. Regarding claims for total disability when a wage-earning capacity
decision has been issued, OWCP should develop the evidence to determine whether a
modification of that LWEC position is appropriate.

3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

3

ANALYSIS
In the present case, OWCP issued an April 28, 2008 wage-earning capacity decision
based on the modified letter carrier position appellant performed between August 11 and
November 5, 2007. Appellant has argued the wage-earning capacity determination should be
modified as the position was makeshift and his work duties were eventually withdrawn under
NRP on September 17, 2009. The Board finds that the case is not in posture for decision.
When a loss of wage-earnings capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.5 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited-duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.6
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating and
direct the employing establishment to review its files for contemporaneous evidence concerning
the position.7
As OWCP failed to follow the guideline in FECA Bulletin No. 09-05, the Board will set
aside the March 8, 2011 decision and remand the case for further consideration.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development, to be followed by an appropriate decision.

5

Id.

6

Id. at § I.A.1-2.

7

Id. at § I.A.3.

4

ORDER
IT IS HEREBY ORDERED THAT the September 7, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: October 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, DETROIT
PROCESSING & DISTRIBUTION CENTER,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0576
Issued: August 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 21, 2020 appellant filed a timely appeal from a September 17, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its September 17, 2019 decision.
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 a traumatic injury
in the performance of duty on July 31, 2019, as alleged.
FACTUAL HISTORY
On July 31, 2019 appellant, then a 67-year-old occupational health nurse, filed a traumatic
injury claim (Form CA-1) alleging that on that morning she experienced burning in her nose and
face, itching, a headache, and a hoarse throat after encountering the strong smell of a fragrant odor
while in the performance of duty. She stopped work the same day. On July 31, 2019 the
employing establishment executed an authorization for examination and/or treatment (Form CA16) authorizing appellant to seek medical treatment for her claimed injury.
In an August 1, 2019 statement, M.W., a human resource specialist with the employing
establishment, explained that she went to the medical unit to investigate appellant’s claim of a
strong odor of perfume which caused her to cough, have headaches, and burning eyes and skin.
When she got to the medical unit she recounted a faint smell of perfume and food. M.W. asked
appellant and another employee about the odor and the other employee explained that the smell
originated from a spray bottle utilized by appellant after she used the restroom. M.W. then opened
the bottle and smelled the solution, noting that it had a very strong odor. Appellant insisted that
the solution was odorless and sprayed the solution in another room to prove it was odorless. M.W.
noted that the solution still had a strong smell and stated that it was not odorless.
In a development letter dated August 9, 2019, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
advised appellant that the evidence submitted was insufficient to establish that she actually
experienced the incident alleged to have caused the injury. It requested additional factual and
medical evidence and provided a questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide additional
information regarding appellant’s traumatic injury claim, including comments from a
knowledgeable supervisor regarding the accuracy of appellant’s statements. It afforded both
parties 30 days to submit the necessary evidence.
In a July 31, 2019 medical report, Dr. Katherine Cybinski, Board-certified in family
medicine, evaluated appellant’s symptoms of headaches and burning in her nose and lips after she
was exposed to a heavy perfume at work. She diagnosed an acute nonintractable headache,
unspecified headache type and an allergic reaction and opined that it was likely a skin irritation.
In an August 1, 2019 medical report, Dr. Elaine Cassen, Board-certified in internal
medicine, indicated that on the morning of July 31, 2019 appellant experienced adverse effects to
an aerosol spray that a nurse sprayed in the hallway at work. She also noted appellant’s history of
chronic rhinitis. Dr. Cassen opined that appellant experienced an irritation to the spray and
recommended that she remain out of work for the remainder of the day and through

2

August 2, 2019. She diagnosed a nonintractable headache, unspecified chronic pattern,
unspecified headache type and rhinitis, unspecified type.
In an August 1, 2019 attending physician’s report (Form CA-16), Dr. Cassen again noted
that appellant experienced a burning nose and raspy voice after being exposed to a sprayed
fragrance. She checked a box marked “No” to indicate her belief that appellant’s injury was not
caused or aggravated by her federal employment, except that her exposure to the aerosol had
occurred on the job.
Appellant submitted e-mails dated from August 9 to 14, 2019 between herself and
Dr. Cassen in which she reported that her symptoms continued and requested referral to an allergist
for further evaluation. Dr. Cassen explained that an allergist may not be able to help because her
symptoms sounded like an adverse reaction to the aerosol and the stress of the situation, not an
allergic reaction.
In an August 16, 2019 statement, J.C., appellant’s coworker, indicated that appellant
requested that she come to her office on July 31, 2019 and explained that when she went to the
medical unit she smelled a perfume or deodorizer in the hallway.
In an August 22, 2019 medical report, Dr. Cassen noted that appellant was still
experiencing symptoms related to her exposure to a fragrant aerosol. She reviewed the
medications appellant was using to treat her symptoms and diagnosed chronic rhinitis and stress
at work.
In a September 3, 2019 e-mail M.S., appellant’s coworker, explained that appellant used a
citrus spray in the workplace and that it could be smelled throughout the medical department.
In a September 4, 2019 medical note, Dr. Rachel Kado, a Board-certified allergist, noted
that she saw appellant that day and requested that she be excused from work for the remainder of
the day.
In a September 9, 2019 response to OWCP’s questionnaire, appellant explained that she
had a bottle of citrus spray that she kept in the bathroom and that she never sprayed it in the
hallway. She insisted that she only used the spray for certain odors and that M.S. also used a spray
on a daily basis in her room next door to appellant’s room.
In undated treatment instructions, Dr. Kado explained that appellant’s symptoms seemed
to be associated to an irritant effect causing vasomotor rhinitis.
By decision dated September 17, 2019, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as she described. It explained that she had not submitted factual evidence to support that
she experienced a work-related condition due to her office containing a strong fragrance.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.8 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.11 An employee’s

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

4

statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the claimed
July 31, 2019 employment incident occurred in the performance of duty, as alleged.
The record establishes that on July 31, 2019 appellant was exposed to a strong odor from
a fragrance in the medical unit. M.W.’s August 1, 2019 statement confirms that on the day of the
alleged incident appellant complained that the strong smell of a perfume in the medical unit caused
her to cough, have a headache, and experience burning in her eyes and skin. Upon further
investigation, she confirmed that she smelled a faint odor of perfume and food in the area where
the appellant was exposed. Further, she found that the spray bottle in the office had a very strong
odor. Appellant’s coworker, J.C, provided an August 16, 2019 statement asserting that she was
called to appellant’s office and that she could smell a perfume or deodorizer in the hallway on
July 31, 2019. Additionally, appellant sought prompt medical care, first with Dr. Cybinski on
July 31, 2019, who noted her exposure to a strong perfume at work the same day and diagnosed a
headache and allergic reaction. Drs. Cassen and Kado also evaluated appellant’s symptoms in
relation to the July 31, 2019 employment incident on August 1 and September 4, 2019,
respectively, and a nonintractable headache, unspecified chronic patter; unspecified headache type
and rhinitis, unspecified type; and symptoms associated with irritant effect causing vasomotor
rhinitis.
The injuries appellant claimed are consistent with the facts and circumstances she set forth,
statements from her coworkers, her course of action and the medical evidence she submitted.
Further, the history of the employment incident was confirmed by Drs. Cybinski, Cassen, and
Kado’s contemporaneous medical reports. The Board thus finds that appellant has met her burden
of proof to establish that the July 31, 2019 employment incident occurred in the performance of
duty, as alleged.13
As appellant has established that the July 31, 2019 employment incident factually occurred
as alleged, the question becomes whether the incident caused an injury.14 As OWCP found that
appellant had not established fact of injury, it did not evaluate the medical evidence. The Board,
therefore, will set aside OWCP’s September 17, 2019 decision and remand the case for
consideration of the medical evidence of record.15 After such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met her burden
of proof to establish an injury causally related to the accepted July 31, 2019 employment incident.

12

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

13

See M.A., Docket No. 19-0616 (issued April 10, 2020); C.M., Docket No. 19-0009 (issued May 24, 2019).

14

Id.

15

S.M., Docket No. 16-0875 (issued December 12, 2017).

5

CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the July 31,
2019 employment incident occurred in the performance of duty, as alleged. The Board further
finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the accepted July 31, 2019 employment incident.16
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 6, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

16

The case record contains an authorization for examination and/or treatment (Form CA-16) dated July 31, 2019.
A properly completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018);
N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Los Angeles, CA, Employer
)
__________________________________________ )
M.C., Appellant

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

Docket No. 09-2314
Issued: August 20, 2010

Case Submitted on the Record

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

JURISDICTION
On September 14, 2009 appellant, through her representative, filed an appeal of a July 14,
2009 merit decision of the Office of Workers’ Compensation Programs denying reimbursement
for attendant services. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over
the merits of the attendant services issue.
ISSUE
The issue is whether the Office abused its discretion by denying appellant’s claim for
reimbursement for attendant services beginning August 30, 2007.
FACTUAL HISTORY
The Office accepted that appellant, a 53-year-old registered nurse, sustained a right wrist
and shoulder sprain, right carpal tunnel syndrome and right rotator cuff tear as a result of her

employment.1 Appellant underwent right shoulder surgery on August 30, 2007. She received
disability benefits on the periodic rolls from August 28, 2007 through November 22, 2008.2 On
November 10, 2008 she returned to work in a limited duty, full-time permanent position as a
telephonic nurse case manager at the employing establishment. By decision dated January 15,
2009, the Office found that appellant’s actual earnings fairly and reasonably represented her
wage-earning capacity. It reduced her wage-loss benefits to zero.
On August 23, 2007 Dr. Gabriel V. Rubanenko, a Board-certified orthopedic surgeon,
advised that appellant would be unable to work and incapable of performing any activities at or
above the shoulder level or do any lifting or strength activities with the right upper extremity.
He noted that appellant’s left upper extremity was totally paralyzed due to Erbs Palsy, a
condition with which she was born. Dr. Rubanenko stated that she would require home health
care after surgery to assist her with activities such as bathing, dressing and performing household
chores since she would have very limited use of the right upper extremity. He noted
rehabilitative therapy would start one month postsurgery.
On August 23, 2007 appellant contacted the Office. She claimed that she would need
assistance following surgery as she would not have the use of her right arm and would like to
have a friend or family member to assist her. The Office advised appellant that it could only pay
for an authorized professional attendant.
On February 22, 2008 the Office received a February 13, 2008 letter from appellant’s
congressman concerning appellant’s February 5, 2008 request for reimbursement of home health
care and attendant care services provided by her sister, Veronica and a housemate. Appellant
claimed $17,000.00 for the period August 26, 2007 to January 5, 2008. She enclosed copies of
endorsed checks totaling $17,000.00 and made out to cash, her sister and the housemate for
postsurgery home care.
In a February 26, 2008 letter, the Office advised appellant that additional information was
required before payment for services of an attendant could be authorized. It asked her to respond
to a list of questions and provided her with questionnaires to complete for herself and her
physician. Appellant was informed that the Office could only pay services of an attendant where
medical documentation supported that assistance was required to care for basic personal care
needs and, if services are approved, payment for such services was limited to $1,500.00 per
month by regulation. It noted that payments were billed by and paid directly to the professional
providing attendant services and could only be paid for a home health aide, licensed practical
nurse or similarly trained individual.

1

Appellant has several other claims. Under case number xxxxxx681, date of injury May 22, 2003, the Office
accepted a strain to the right hand, elbow, shoulder and tendinitis of right shoulder and hand due to a patient pulling
her to the ground. This claim has been doubled into the present claim. Under case number xxxxx814, date of injury
February 15, 2002, the Office denied appellant’s claim for stress.
2

On February 1, 2010 the Board affirmed a March 18, 2009 Office overpayment decision. It found that appellant
received an overpayment in the amount of $2,631.13 from November 10 to 22, 2008 and that the Office properly
denied waiver of the overpayment. Docket No. 09-1252 (issued February 1, 2010).

2

On May 12, 2008 appellant underwent a second opinion examination with Dr. KhodamRad Payman, a Board-certified orthopedic surgeon. In a May 14, 2009 report, Dr. Payman
agreed that appellant was temporarily totally disabled. He felt that she was in need of attendant
care, but did not specify the extent of care required.
In a June 4, 2008 report, Dr. Rubanenko advised that his August 23, 2007 report had
recommended that appellant’s physical condition would necessitate 24-hour attendant care for
five months after surgery from August 30, 2007 through January 25, 2008. This was due to
multiple problems in the right upper extremity as well as from the Erbs Palsy of her left arm,
which was completely paralyzed. Dr. Rubanenko explained that the combination of these
conditions made it impossible for appellant to care for herself after surgery. He indicated that
she continued to require full-time attendant care. Dr. Rubanenko provided a note which advised
appellant that she had authorization for attendant care, including from family members, which
was reimbursable by the Office. Appellant paid for these services out of her own pocket,
expecting to be reimbursed. Dr. Rubanenko indicated that his office sent the original request for
authorization to appellant’s employer. He advised that when she was given authorization for
surgery, his chiropractic assistant incorrectly filled out a form on April 23, 2008 saying that she
did not require attendant care despite his August 23, 2007 letter stating the opposite.
Dr. Rubanenko reiterated that appellant required attendant care after surgery and continued to
require care.
On a questionnaire signed June 23, 2008 appellant requested continued home health care,
in the form of attendant care, seven days a week, four hours a day. She indicated that she
received attendant care services since August 30, 2007. Appellant claimed that her sister helped
her and that she wanted her housemate and his family as her live-in attendants. She indicated
that her sister had assisted their terminally-ill father until he passed away in August 2006.
Appellant advised that her housemate had prior experience assisting his incapacitated elderly
parents; her housemate’s wife had prior experience assisting others with daily activities when she
was a medic in the Israeli Army; and her housemate’s son had prior experience in tending to the
elderly. She paid her sister $2,000.00 to care for her and purchased her plane ticket from Aruba
to Los Angeles in the amount of $930.00. Appellant paid her housemate’s family $3,000.00 a
month for the first five months and continued to pay them by check for their services.
On a questionnaire signed June 24, 2008, Dr. Rubanenko advised that he examined
appellant on June 24, 2008 and that she had left arm Erbs Palsy with paralysis and an inability to
use her right arm due to: chronic pain in the neck with radiation of pain into the right shoulder;
numbness and tingling down right arm and hand; degenerative disc disease at C3-4, C4-5 and
C5-6; spinal stenosis at C3-4 and contour abnormality of the cervical cord; spondylosis and
radiculitis of cervical spine; right shoulder and neck strain; surgically repaired right rotator cuff
tear; lateral epicondylitis in right elbow; tendinitis of right wrist; and right hand carpal tunnel
syndrome with positive Tinel’s and Phalen’s test. He advised that she needed ongoing assistance
with activities of daily living. Dr. Rubanenko explained that appellant had difficulty performing
such activities as: preparing meals, doing laundry; folding clothes; grocery shopping; cleaning
the house; and dressing or bathing without the assistance of an attendant. He advised that she
required an attendant since August 30, 2007 and would continue to require future services. Prior
to May 2006 when appellant’s husband passed away, appellant relied heavily on him to perform

3

such activities. After his death she had no other family members to assist her with those
activities.
In an August 19, 2008 note, Dr. Rubanenko advised that appellant was in need of
transportation services. On October 7, 2008 he found her permanent and stationary and provided
work restrictions. Dr. Rubanenko advised that future medical care was appropriate and appellant
was a candidate for several surgeries. On December 17, 2008 he saw her for an injury to her left
hand while at home in August 2008. Dr. Rubankenko diagnosed left hand strain/possible
facture, compensatory to industrial injury; exacerbation of cervical sprain and spondylitis; and
exacerbation right carpal tunnel syndrome pain. He found that appellant could continue to
perform modified duties at the employing establishment and recommended ergonomic
accommodations. Dr. Rubankenko noted that she required transportation to all appointments.
In a January 6, 2009 decision, the Office denied appellant’s request for reimbursement of
expenses for home health attendant care. It found that the medical evidence failed to establish
that she used an approved health care provider.
On January 9, 2009 appellant requested a telephonic hearing, which was held
May 12, 2009. At the hearing, appellant’s attorney contended that she required an attendant as
her left hand was completely paralyzed due to a preexisting condition and the right shoulder
surgery precluded use of her right arm. While appellant did not obtain attendant care in the
proper manner, the Office was put on notice that an attendant would be needed when her
physician requested such care. She testified that she knew she would require assistance
following surgery, but never received any correspondence regarding the need for an attendant
until after she requested reimbursement. Appellant stated that an Office rehabilitation nurse,
Gregg Lewis, never told her what was needed for an attendant and she never saw him during her
recuperation from surgery. She advised that she could dress herself three months postsurgery
and drive five months postsurgery.
Following the hearing, appellant submitted reports from Dr. Rubanenko dated
December 17, 2008 through May 27, 2009. Dr. Rubanenko reiterated that, due to her condition,
appellant required transportation to all her appointments.
In a July 14, 2009 decision, an Office hearing representative affirmed the January 6, 2009
decision, finding that appellant was not entitled to the services of an attendant beginning
August 30, 2007. While appellant submitted medical evidence supporting the need for an
attendant, she did not obtain assistance from a home health aide, licensed practical nurse or
similarly trained individual.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty the services,
appliances and supplies prescribed or recommended by a qualified physician that the Secretary
of Labor considers likely to cure, give relief, reduce the degree or the period of any disability or

4

aid in lessening the amount of any monthly compensation.3 The Office has broad discretionary
authority in determining whether the particular service, appliance or supply is likely to affect the
purposes specified in the Act.4 The only limitation on the Office’s discretionary authority is that
of reasonableness. Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.5
Section 8111 of the Act provides that the Secretary of Labor may pay an employee who
has been awarded compensation an additional sum of not more than $1,500.00 a month, as the
Secretary considers necessary, when the Secretary finds that the service of an attendant is
necessary constantly because the employee is totally blind or has lost the use of both hands or
both feet or is paralyzed and unable to walk or because of other disability resulting from the
injury making him or her so helpless as to require constant attendance.6
Office regulations provide that the Office will pay for the services of an attendant:
“[U]p to a maximum of $1,500.00 per month, where the need for such services
has been medically documented. In the exercise of the discretion afforded by 5
U.S.C. § 8111(a), the Director has determined that, except where payments were
being made prior to January 4, 1999, direct payments to the claimant to cover
such services will no longer be made. Rather, the cost of providing attendant
services will be paid under section 8103 of the Act and medical bills for these
services will be considered under section 10.801. This decision is based on the
following factors -(a) The additional payments authorized under section 8111(a) should not
be necessary since [the Office] will authorize payment for personal care
services under 5 U.S.C. § 8103, whether or not such care includes medical
services, so long as the personal care services have been determined to be
medically necessary and are provided by a home health aide, licensed
practical nurse or similarly trained individual.
(b) A home health aide, licensed practical nurse or similarly trained
individual is better able to provide quality personal care services,
including assistance in feeding, bathing and using the toilet. In the past,
provision of supplemental compensation directly to injured employees
may have encouraged family members to take on these responsibilities
even though they may not have been trained to provide such services. By
3

5 U.S.C. § 8103(a).

4

See Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration
of the Act and must exercise that discretion to achieve the objectives of section 8103).
5

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

6

5 U.S.C. § 8111(a).

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paying for the services under section 8103, [the Office] can better
determine whether the services provided are necessary and/or adequate to
meet the needs of the injured employee. In addition, a system requiring
the personal care provider to submit a bill to [the Office], where the
amount billed will be subject to [the Office s] fee schedule, will result in
greater fiscal accountability.”7
A claimant bears the burden of proof in establishing by competent medical evidence that
he or she requires attendant care within the meaning of the Act. The claimant is not required to
need around-the-clock care, but need only demonstrate a continually recurring need for
assistance in personal matters. The attendant allowance is not intended to pay for the
performance of domestic and housekeeping chores such as cooking, cleaning, doing the laundry
or providing transportation services. It is intended to pay an attendant for assisting the claimant
in personal needs such as dressing, bathing or using the toilet. An attendant allowance is not
granted simply on the request of a disabled claimant or his or her physicians. The need for
attendant care must be established by rationalized medical opinion evidence.8
ANALYSIS
The Board finds that the Office did not abuse its discretion in denying appellant’s request
to reimburse her for attendant services beginning August 30, 2007. The Act does not state that
the Office shall pay for the service of an attendant.9 The Act provides that the Office may pay
for the service of an attendant. It is for the Office to decide whether or not to pay an allowance.
The Board will not disturb that decision in the absence of proof of manifest error, clearly
unreasonable judgment or actions that are contrary to both logic and probable deductions from
established facts.10
An attendant allowance is not granted simply on the request of a disabled claimant or his
or her physicians. Appellant must establish by competent medical evidence that the service of an
attendant is necessary constantly within the meaning of section 8111 of the Act and that payment
must be made to authorized providers only. She submitted competent rationalized medical
evidence to establish her need for attendant care after surgery to assist with bathing, dressing and
household chores. As appellant’s left arm was paralyzed due to Erbs Palsy and she would have
limited use of her right upper extremity Dr. Rubanenko stated that attendant care would be
required for five months following surgery.

7

20 C.F.R. § 10.314; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability
Cases, Chapter 2.812.9 (June 2003) (an attendant allowance paid directly to the claimant prior to January 1999 will
continue to be paid to the claimant until the need for the attendant ceases and any future period of attendant services
for the claimant will be paid under the revised procedures).
8

Thomas Lee Cox, 54 ECAB 509 (2003).

9

The Act does not mandate a payment of $1,500.00 a month. L.D., 59 ECAB ___ (Docket No. 08-966, issued
July 17, 2008).
10

See Perea, supra 5.

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The Office implementing federal regulations address who may provide personal care
services. It limits reimbursement to a home health aide, licensed practical nurse or similarly
trained individual. Having provided service to the elderly or treating elderly parents does not
establish that appellant’s sister or housemate and his family are experienced professionals or
trained as a home health aide or a licensed practical nurse. While the housemate’s wife was a
medic in the Israeli Army, there is no evidence of record to establish any training similar to a
home health aide or a licensed practical nurse or that she was appellant’s sole attendant during
the five months following surgery. Office regulations explain that professionals are better able
than family members or housemates to provide quality personal care services, including
assistance in feeding, bathing and using the toilet. Under the regulations, the Director has
exercised his discretion to limit services to those trained in home health care or as a nurse. As
appellant’s caregivers do not satisfy this training requirement, the Office properly denied her
request for reimbursement.
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for attendant services. The Office is precluded by regulation from paying her directly to cover
such services. Additionally, any personal care services must be provided by a home health aide,
licensed practical nurse or similarly trained individual. The Office properly exercised its
discretion to deny such payment. The Board will affirm the hearing representative’s July 14,
2009 decision.
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for an attendant allowance.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation decision
dated July 14, 2009 is affirmed.
Issued: August 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8