United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, DEFENSE SUPPLY
CENTER PHILADELPHIA-PACIFIC REGION,
Guam, Employer
__________________________________________

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

Docket No. 13-380
Issued: April 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On December 6, 2012 appellant filed a timely appeal from a November 1, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a ratable impairment of the uterus, cervix, vulva,
vagina and rectum due to an accepted lumbar injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on December 21, 1999 appellant, then a 48-year-old marketing and
logistics specialist, sustained a lumbosacral sprain, herniated L5-S1 disc, lumbar radiculopathy,
lumbosacral neuritis, lumbago and adhesive arachnoiditis when she slipped and fell on a wet
floor. It later accepted a consequential cervical sprain. OWCP authorized a November 9, 2000
L5-S1 left-sided microdiscectomy. It later expanded the claim to accept major depressive
disorder and adjustment reaction with anxiety and depression. Following intermittent absences,
appellant stopped work on December 3, 2001 and did not return.2 She received compensation on
the periodic rolls.
Appellant remained under medical treatment for lumbar radiculitis through 2001.
Dr. Barbara A. McQuinn, an attending Board-certified neurologist, treated appellant for
discogenic low back pain through 2002.
In an October 31, 2002 report, Dr. Thomas R. Stephenson, an attending Board-certified
physiatrist and pain management specialist, diagnosed significant sexual desensitization
secondary to prescribed narcotics for lumbar pain caused by the accepted injuries. He prescribed
Viagra. OWCP authorized the Viagra prescription. In a January 30, 2003 report, Dr. McQuinn
diagnosed urinary retention secondary to prescribed Nortriptyline. On November 2, 2004 he
noted continuing sexual dysfunction with loss of sensation. Beginning in 2005, Dr. McQuinn
noted appellant’s account of episodic urinary incontinence.
On August 25, 2010 Dr. Eubulus Kerr, an attending Board-certified orthopedic surgeon,
performed left-sided microscopic decompressions at L4-5 and L5-S1, decompressing the L4-5
nerve root. OWCP authorized the procedure.3
In a June 1, 2011 report, Dr. Kerr noted that appellant reported fecal incontinence. He
opined that, based on a June 1, 2011 magnetic resonance imaging (MRI) scan showing spinal
stenosis and L4-5 spondylolisthesis, he did “not feel that her fecal incontinence [was] related at
all to her lumbar spine pathology.”
Appellant consulted several gastroenterologists.
In an April 27, 2011 report,
Dr. James C. Hobley, an attending Board-certified gastroenterologist, noted that appellant
“experienced episodes of fecal incontinence since undergoing lumbar spine surgery and also
ha[d] a history of urinary incontinence as well.” He recommended anal manometry. Dr. Scott
2

On April 10, 2002 OWCP obtained a second opinion from Dr. Daniel K. Lee, a Board-certified neurologist, who
found appellant remained totally disabled for work due to the accepted injuries. On April 4, 2003 Dr. Arthur Lyons,
a Board-certified neurosurgeon and second opinion physician, found appellant totally disabled for work due to the
accepted injuries. OWCP then found a conflict of medical opinion between Dr. Lyons and appellant’s attending
physicians, and selected Dr. Desmond Erasmus, a Board-certified neurosurgeon, to resolve the conflict.
Dr. Erasmus submitted an August 1, 2003 report finding that a lumbar fusion should be considered to address L4-5
disc degeneration caused by the accepted injuries.
3

On December 11, 2010 appellant claimed a schedule award. In support of her claim, she submitted a
February 22, 2011 impairment rating from a Dr. Austin Gleason finding a 21 percent whole person impairment
according to the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). OWCP did not further develop the schedule award claim.

2

Brill, an attending Board-certified colorectal surgeon, found good rectal sphincter tone on
November 22, 2011 examination and recommended deferral of further testing.
In a
December 22, 2011 report, Dr. Michael Stratton, an attending Board-certified gastroenterologist,
diagnosed fecal incontinence and recommended pelvic floor exercises and a high fiber diet.
In an April 6, 2012 report, an OWCP medical adviser opined that appellant’s fecal
incontinence was related to the accepted lumbar injury and surgeries. On May 15, 2012 OWCP
accepted fecal incontinence as work related.
On June 26, 2012 appellant claimed a schedule award for fecal incontinence in
conjunction “with loss of use of uterus/cervix and vulva/vagina.” In a July 5, 2012 letter, OWCP
advised appellant of the type of evidence needed to establish her claim, including a report from
her attending physician finding that she attained maximum medical improvement, a description
of the claimed impairment and an impairment rating from her attending physician utilizing the
sixth edition of the A.M.A., Guides. Appellant was afforded 30 days in which to submit such
evidence.
In a September 11, 2012 report, Dr. Sanjeevi Tivakaran, an attending physician Boardcertified in sleep medicine, diagnosed gastroenteritis superimposed on fecal incontinence.
In a September 25, 2012 report, Dr. Kerr noted appellant’s continuing complaints of fecal
incontinence of unknown etiology.
By decision dated November 1, 2012, OWCP denied appellant’s schedule award claim on
the grounds that the medical evidence submitted did not establish that appellant had attained
maximum medical improvement, did not fully describe the claimed impairments or provide an
impairment rating. It further found that the rectum was not a scheduled member.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

3

and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.9 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.10
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.11 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,12 no claimant is entitled
to such an award.13 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the uterus/cervix and
vulva/vagina,14 a claimant may be entitled to a schedule award for permanent impairment for
originating in those organs or if the cause of the impairment originated in the spine.15 However,
there is no provision under FECA or its implementing regulations for the colon or rectum.16
ANALYSIS
OWCP accepted that appellant sustained a lumbosacral sprain, herniated L5-S1 disc,
lumbosacral neuritis, lumbar radiculopathy, lumbago, adhesive arachnoiditis, fecal incontinence,
major depressive disorder and an adjustment reaction with anxiety and depression.
7

A.M.A., Guides 3 (6th ed., 2008) Section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides 494-531 (6th ed., 2008).

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(b) (August 2002).
11

Henry B. Floyd, III, 52 ECAB 220 (2001).

12

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

13

Thomas Martinez, 54 ECAB 623 (2003).

14

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404.

15

C.R., Docket No. 09-2301 (issued August 13, 2010).

16

D.J., Docket No. 11-1359 (issued February 24, 2012).

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On June 26, 2012 appellant claimed a schedule award for fecal incontinence in
conjunction with loss of use of the uterus/cervix and vulva/vagina. Attending Board-certified
gastroenterologists, Dr. Hobley and Dr. Stratton, and Dr. Brill, an attending Board-certified
colorectal surgeon, diagnosed fecal incontinence in 2011. OWCP accepted fecal incontinence as
work related. However, there is no provision under FECA or its implementing regulations for
impairment to the colon or rectum.17 The Secretary did not determine, pursuant to the
discretionary authority granted in section 8107(c)(22) of FECA, that a gastrointestinal
impairment constitutes an important external or internal organ or function of the body.18 FECA
does not provide for OWCP to add organs or functions to the compensation schedule on a caseby-case basis and the Board does not have the power to enlarge the provisions of either statute or
regulations.19 Therefore, appellant is not entitled to a schedule award for fecal incontinence.
Appellant also submitted reports regarding sexual dysfunction. On October 1, 2002
Dr. Stephenson, an attending Board-certified physiatrist, noted sexual desensitization due to
prescribed narcotics. OWCP authorized Viagra but did not accept sexual desensitization as work
related.
Dr. McQuinn, an attending Board-certified neurologist, prescribed Viagra on
November 2, 2004 for sexual desensitization. However, neither physician opined that appellant
had sustained a permanent impairment of the cervix, uterus, vulva or vagina due to the accepted
lumbar injuries or treatment for those injuries. Their opinions are therefore insufficient to
establish appellant’s entitlement to a schedule award.20
OWCP advised appellant by July 5, 2012 letter to submit a report from her attending
physician establishing that she had attained maximum medical improvement, describing any
permanent impairment, and rating such impairment according to the sixth edition of the A.M.A.,
Guides. However, appellant did not submit such evidence. Therefore, OWCP properly denied
her schedule award claim.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained a ratable impairment
of the uterus, cervix, vulva, vagina and rectum due to an accepted lumbar injury and surgeries.

17

D.J., supra note 16.

18

K.F., Docket No. 10-2160 (issued May 11, 2011).

19

Janet C. Anderson, 54 ECAB 394 (2003).

20

Tammy L. Meehan, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2012 is affirmed.
Issued: April 22, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 20-0897
Issued: August 11, 2021

Case Submitted on the Record

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

JURISDICTION
On March 18, 2020 appellant, through counsel, filed a timely appeal from a February 10,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 10, 2020 decision, appellant submitted additional evidence to
OWCP. 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 permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On May 4, 2004 appellant, then a 46-year-old mail processor, filed an occupational disease
claim (Form CA-2) alleging that she sustained an aggravation of a preexisting back injury due to
factors of her federal employment including constant bending, twisting, and lifting. She indicated
that she first became aware of her claimed injury on October 1, 2001 and first realized its relation
to factors of her federal employment on January 9, 2004. OWCP assigned OWCP File No.
xxxxxx755 and accepted the claim for temporary aggravation of lumbar facet arthrosis. Under a
separate traumatic injury claim (Form CA-1), assigned OWCP File No. xxxxxx644, it accepted
that appellant sustained an acute lumbar strain due to a February 3, 2011 fall at work. Under
another traumatic injury claim, assigned OWCP File No. xxxxxx342, appellant claimed a back
injury due to handling a mail tray on May 6, 2016 and OWCP paid limited medical expenses
without formally adjudicating the claim. She also claimed that she sustained a new occupational
injury in early-2013 and OWCP accepted the claim, assigned OWCP File No. xxxxxx813, for a
lumbar sprain which had resolved no later than June 3, 2015. OWCP administratively combined
OWCP File Nos. xxxxxx644, xxxxxx342, xxxxxx815, and xxxxxx755, designating the latter as
the master file.
In an April 6, 2015 report, Dr. Catherine Watkins Campbell, a Board-certified orthopedic
surgeon, determined that appellant had 14 percent permanent impairment of her right lower
extremity. She applied the standards of The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a
supplemental publication of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 On August 5, 2015 appellant filed a
claim for compensation (Form CA-7) for a schedule award due to her accepted employment
injuries.
After extensive development of the medical evidence, including referral of appellant to
Dr. Mark Berkowitz, a Board-certified orthopedic surgeon serving as an impartial medical
specialist, OWCP issued a May 5, 2017 decision denying her claim for a schedule award, finding
that she had not met her burden of proof to establish, through the medical evidence of record,
permanent impairment of a scheduled member or function of the body.5
In a November 16, 2018 report, Dr. Sami Moufawad, Board-certified in pain medicine,
discussed appellant’s factual and medical history and reported the findings of his physical
examination. He indicated that she presently complained of pain in her low back and lower
extremities, worse on the right. Dr. Moufawad noted that appellant’s knee flexion and extension
4

(6th ed. 2009).

5
OWCP found a conflict in the medical opinion evidence regarding permanent impairment between the opinion of
Dr. Watkins Campbell, and the opinions of Dr. Richard Deerhake, a Board-certified orthopedic surgeon serving as an
OWCP referral physician, and an OWCP district medical adviser (DMA). In a March 30, 2017 report, Dr. Berkowitz
found no permanent impairment of appellant’s lower extremities under The Guides Newsletter.

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exhibited full strength bilaterally, as did the hips. Knee reflexes were intact and symmetrical, but
the right ankle reflex was absent. Appellant had a mildly weak right big toe extension of 4+/5,
compared to 5/5 on the left side. Dr. Moufawad advised that the sensory examination showed
decreased sensation to light touch on the lateral and posterior aspect of the right leg into the dorsum
of both feet, which he rated as 4/5. He discussed appellant’s accepted active lumbar spondylosis
and opined that a right L5-S1 radiculopathy was well documented on electrodiagnostic studies.
Dr. Moufawad noted that her hypersensitivity to light touch on examination was a symptom of
muscle spasms. He applied the standards of The Guides Newsletter and found that appellant had
a grade modifier for functional history (GMFH) of 3 and a grade modifier for clinical studies
(GMCS) of 3, and that the grade modifier for physical examination (GMPE) was not applicable.
Dr. Moufawad applied the net adjustment formula and found that she had 10 percent permanent
impairment of the right lower extremity due to L5 nerve sensory/motor deficits and 4 percent
permanent impairment of the right lower extremity due to S1 nerve sensory/motor deficits. He
concluded that appellant had 14 percent permanent impairment of her right lower extremity based
on motor and sensory deficits in the right L5 and S1 dermatomes. Dr. Moufawad found that she
had reached maximum medical improvement (MMI).
On December 20, 2018 appellant filed a new Form CA-7 for a schedule award.
In an April 9, 2019 report, Dr. Michael Katz, a Board-certified orthopedic surgeon serving
as a DMA, questioned how Dr. Moufawad was able to determine a work-related impairment of 14
percent when prior examinations recorded no sensory or motor deficits. He recommended a
second opinion examination in order to better determine permanent impairment.
On April 24, 2019 OWCP referred appellant for a second opinion examination with
Dr. Victoria Langa, a Board-certified orthopedic surgeon, and requested that she provide an
opinion on permanent impairment. In a May 29, 2019 report, Dr. Langa discussed appellant’s
factual and medical history and reported the findings of her physical examination. She noted that
appellant had tenderness over the lower lumbar spine at midline, but that the paravertebrals were
not tender. The bilateral sacroiliac joints were mildly tender, but the iliac crests, sciatic notches,
and greater trochanters were not tender. Dr. Langa indicated that active back motion was recorded
on flexion, extension, and lateral flexion, and that straight leg raising was negative bilaterally. She
noted that no swelling or atrophy was found on examination, and that the knees and ankles
demonstrated symmetric motion. Reflexes were diminished, but equal and no motor deficit or
sensory deficit was identified in either leg. Dr. Langa opined that had appellant had symptoms of
lumbosacral radiculitis, without any motor or sensory deficits consistent with radiculopathy. She
indicated that appellant had reached MMI. Dr. Langa noted that, although earlier electrodiagnostic
studies of October 4, 2011 and October 7, 2014 were positive, appellant did not exhibit motor or
sensory deficit on her physical examination and, therefore, concluded that she did not qualify for
a permanent impairment rating under The Guides Newsletter.
In a July 2, 2019 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving
as a DMA, indicated that he had reviewed the medical evidence of record, including Dr. Langa’s
May 29, 2019 report. He opined that he concurred with Dr. Langa’s assessment that appellant’s
lack of neurologic deficits in the legs demonstrated that no ratable permanent impairment was
present according to The Guides Newsletter. Dr. Harris asserted that appellant’s condition had
improved since his visit with Dr. Moufawad on November 16, 2018.

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By decision dated August 8, 2019, OWCP denied appellant’s claim for schedule award
compensation due to permanent impairment of any scheduled member or function of the body. It
based its determination on Dr. Langa’s May 29, 2019 report and Dr. Harris’ July 2, 2019 report.
On August 19, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
December 10, 2019 counsel argued that there was a conflict in the medical opinion evidence
regarding appellant’s permanent impairment. By decision dated February 10, 2020, OWCP’s
hearing representative affirmed the August 8, 2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.10 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.11
The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for rating
spinal nerve extremity impairment in The Guides Newsletter, which is a supplemental publication
of the sixth edition of the A.M.A., Guides. It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper and/or
lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the Federal (FECA) Procedure Manual.12

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
10
5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
11

Supra note 9, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).
12

Supra note 9, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

4

Section 8123(a) of FECA 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.”13 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that a conflict remains in the medical opinion evidence between the
opinion of Dr. Moufawad, an attending physician, and the opinions of Dr. Langa, an OWCP
referral physician, and Dr. Harris, a DMA, regarding the permanent impairment of appellant’s
lower extremities.15
In a November 16, 2018 report, Dr. Moufawad determined that appellant had 14 percent
permanent impairment of her lower extremities. He noted that she had a mildly weak right big toe
extension of 4+/5, compared to 5/5 on the left side. Dr. Moufawad advised that the sensory
examination showed decreased sensation to light touch on the lateral and posterior aspect of the
right leg into the dorsum of both feet, which he rated as 4/5. He applied the standards of The
Guides Newsletter and found that appellant had a GMFH of 3 and a GMCS of 3, and that the
GMPE was not applicable. Dr. Moufawad applied the net adjustment formula and found that she
had 10 percent permanent impairment of the right lower extremity due to L5 nerve sensory/motor
deficits and 4 percent permanent impairment of the right lower extremity due to S1 nerve
sensory/motor deficits. He concluded that appellant had 14 percent permanent impairment of her
right lower extremity based on motor and sensory deficits associated with the right L5 and S1
dermatomes.
In contrast, Dr. Langa determined in her May 29, 2019 report that appellant did not have
permanent impairment of appellant’s lower extremities. She indicated that active back motion was
recorded on flexion, extension, and lateral flexion, and that straight leg raising was negative
bilaterally. Dr. Langa noted that no swelling or atrophy was found on examination, and that the
knees and ankles demonstrated symmetric motion. Reflexes were diminished, but equal and no
motor deficit or sensory deficit was identified in either leg. Dr. Langa opined that appellant had
symptoms of lumbosacral radiculitis, without any motor or sensory deficits consistent with
radiculopathy. She noted that, although earlier electrodiagnostic studies were positive, appellant
did not exhibit motor or sensory deficit on examination and, therefore, she concluded that she did
not qualify for a permanent impairment rating under The Guides Newsletter. As well, Dr. Harris
indicated in his July 2, 2019 report that he concurred with Dr. Langa’s assessment that appellant’s

13

5 U.S.C. § 8123(a).

14

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
15

See supra note 13.

5

lack of neurologic deficits in the legs demonstrated that no ratable permanent impairment was
present according to The Guides Newsletter.
Consequently, the case must be referred to an impartial medical specialist, pursuant to 5
U.S.C. § 8123(a), to resolve the existing conflict in the medical opinion evidence regarding
permanent impairment.16 On remand OWCP shall refer appellant, along with the case file and the
statement of accepted facts, to a specialist in the appropriate field of medicine for an impartial
medical evaluation and report including a rationalized opinion on this matter. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision
regarding her schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

See supra note 14.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA MEDICAL CENTER, Decatur, GA,
Employer
__________________________________________

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

Docket No. 10-2306
Issued: August 8, 2011

Case Submitted on the Record

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

JURISDICTION
On September 14, 2010 appellant, through her attorney, filed a timely appeal from
April 29 and June 8, 2010 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her
herniated disc at L4-5 and protruding disc at L5-S1 were causally related to the accepted
December 22, 2006 employment injury; and (2) whether appellant established a claim for
compensation for October 29 and November 20 through 27, 2009 and February 1 through
March 12, 2010.

1

5 U.S.C. § 8101 et seq.

On appeal appellant, through her attorney, contends that OWCP’s decision is contrary to
fact and law.
FACTUAL HISTORY
On January 9, 2007 appellant, then a 37-year-old nurse, filed a traumatic injury claim
alleging that on December 22, 2006 she slipped on a wet floor and sustained an injury to her left
lower back and hip pain with spasm. On March 7, 2007 OWCP accepted her claim for
lumbosacral spondylosis without myelopathy at L5-S1 with encroachment. It paid compensation
and medical benefits.
The record contains a December 20, 2006 magnetic resonance imaging (MRI) scan of
appellant’s spine that was interpreted by Dr. Robert Barton Price, a Board-certified radiologist,
as evincing spondylosis on the right L5-S1. A subsequent MRI scan taken on May 2, 2007 was
interpreted by Dr. Adam K. Olmsted, a Board-certified radiologist, as showing very shallow
right paracentral mixed disc protrusion at L4-5 which did contain an annular tear and did abut the
right L4 nerve root within the lateral recess but did not displace it.
On April 1, 2008 appellant returned to work as a modified registered nurse.
In an April 8, 2008 progress note, Dr. Brian S. Vanderhoof, appellant’s treating
osteopath, indicated that he sent appellant back to work but that she had a lot of discomfort. He
listed his impression as slight exacerbation of lower lumbar pain related to bilateral sacroiliitis.
Dr. Vanderhoof indicated that he was going to cut her hours back to four per day and continue
other restricted duties of no lifting and squatting. In a May 5, 2008 report, he noted that
appellant had a flare up of predominantly lower back pain after a fall at the Family Dollar store
on April 23, 2008. Dr. Vanderhoof noted that she was doing better, but had to stop working and
was not working at the moment as her back hurt. He listed his impression as a flare up of
bilateral sacroiliitis that she had prior to the fall. Dr. Vanderhoof continued to treat appellant
including treatment with SI joint injections. Appellant continued to miss intermittent time from
work.
A July 9, 2008 MRI scan was interpreted by Dr. Harold F. Keyserling, a Board-certified
radiologist, as showing mild degenerative changes in the lower lumbar spine with possible
impingement of the existing right L4 and L5 nerve roots by disc material.
On January 7 and February 25, 2009 appellant had a right L5, S1, S2, S3 medial
branch/dorsal ramus radiofrequency neurotomies under fluoroscopic guidance. In an April 16,
2009 report, Dr. Vanderhoof indicated that these procedures were helpful and listed his
impression as resolving lower lumbar pain with bilateral sacroiliitis.
Another MRI scan was completed on May 27, 2009 which was interpreted by
Dr. Pradeep K. Amesur, a Board-certified radiologist, as showing at the L4-L5 level right
foraminal and extraforminal herniated nucleus pulposus resulting in moderate grade right
foraminal stenosis with abutment of existing right L4 nerve root. At the L5-S1 level,
Dr. Amesur noted shallow disc displacement, broad-based, with focal protrusion, right foraminal
and extraforaminal, mildly narrowing the right foramen with abutment of the existing right L5

2

nerve root. He noted facet arthrosopathic changes as well and that the left foramen appeared
marginally narrowed with the protruding disc in close proximity to the existing L5 nerve root.
In a May 29, 2009 note, Dr. Vanderhoof found significant resolution of left lumbar and
leg pain with a herniated nucleus pulposus at the L4-5 level and a focal disc protrusion at the L5S1 level as well as clinical symptoms of sacroiliitis. In a June 30, 2009 report, he indicated that
appellant was doing a lot more walking and that he was not going to pursue any active treatment
at this time.
On July 14, 2009 the employing establishment offered appellant a position as a registered
nurse in a full-time sedentary position. Appellant accepted this position on July 30, 2009. His
employment was effective August 17, 2009. As appellant’s wages met or exceeded the wages of
the job held when injured, OWCP terminated her compensation effective August 16, 2009.
However, in an August 14, 2009 report, Dr. Vanderhoof indicated that he wrote appellant
a work excuse to limit her to four hours per day over the next six weeks. In an August 21, 2009
report, he noted that appellant did return to work but that they did not abide by her restrictions
and she was hurting more today. Dr. Vanderhoof listed his impressions as exacerbation of left
lower lumbar pain with question of myofascial pain; bilateral sacroiliitis which has responded
well to the radiofrequency procedures; and herniated nucleus pulposus at the L4-5 level with a
focal disc protrusion at the L5-S1 level.
In an August 28, 2009 medical report, Dr. Vanderhoof indicated that appellant was
referred to him in 2007 for evaluation of back and leg pain. He noted that appellant has had
extensive conservative treatment to include physical therapy, medication, epidural steroid
injections and sacroiliac injections. Dr. Vanderhoof noted that appellant also had radiofrequency
procedure to the medial branches supplying the sacroiliac joints. He indicated that appellant’s
diagnosis was lower back pain related to bilateral sacroiliitis. Dr. Vanderhoof noted that
appellant had a herniated disc at the L4-5 level and a focal disc protrusion at the L5-S1 level. He
stated that appellant had been out of work for quite some time and needed to return to work on a
gradual basis. Dr. Vanderhoof noted that appellant has had flare ups of pain that were all related
to her work injury. He concluded that appellant could definitely perform work under certain
restrictions which would initially require limiting her hours at work and performing no lifting or
repeated squatting or bending.
On September 14, 2009 OWCP’s claims examiner stated that, although the job offer
appeared suitable at the time it was offered, appellant’s physician has indicated that appellant
should work four hours per day for six weeks from his August 14, 2009 medical report. It
reinstated compensation payments.
Appellant was reemployed as a nurse working modified duty four hours a day effective
October 13, 2009. The employing establishment noted that the position was sedentary, requiring
sitting with occasional standing, walking, reaching (not above head) and lifting no more than 15
pounds.
By decision dated October 28, 2009, OWCP stated that it had been informed that
appellant was recently reemployed as a nurse working modified duty four hours a day effective

3

October 13, 2009, and that it was reducing appellant’s monetary compensation effective
October 13, 2009 based on her wages in this position. It advised that she remained entitled to
medical expenses for treatment of her employment-related position.
In an October 29, 2009 note, Dr.Vanderhoof indicated that appellant was diagnosed with
sacroiliitis and radiculopathy and could not work until October 30, 2009.
In a November 3, 2009 report, Dr. Vanderhoof noted that appellant presented with a
follow-up visit on lower lumbar pain, worse on right. He noted that appellant has a herniated
disc at the L4-5 level and protruding disc at the L5-S1 level. Dr. Vanderhoof noted that they had
done extensive conservative treatment without any significant long-term relief. He listed his
impressions as exacerbation of lower lumbar pain with probable discogenic pain with a herniated
nucleus pulposus at the L4-5 level and a disc protrusion at the L5-S1 level. Dr. Vanderhoof also
noted clinical symptoms of sacroiliitis, worse on the right than the left, but he believed that was
just a component of her pain.
On December 7, 2009 appellant filed a claim for compensation for the period October 29
through November 27, 2009. Time analysis forms indicated that she was claiming compensation
for eight hours per day for October 29 and November 20, 23, 24, 25, 26 and 27, 2009. By letter
dated December 10, 2009, OWCP denied this claim. Its claims examiner stated that the record
confirmed that appellant has been in receipt of compensation for four hours per day for lost
wages from October 13, 2009 though present.
In a December 10, 2009 report, Dr. Vanderhoof wrote under history that appellant
presented that date for follow up of lower lumbar pain, worse on the right than on left and noted
that appellant had to miss work from November 20 through 27, 2009. He noted that he was out
of the office for part of this week and that he will write a work excuse for these dates but noted
that appellant needed to be seen if she was going to have to miss work.
By letter dated December 28, 2009, OWCP indicated that appellant needed to submit
further evidence to support her claim for compensation for the period October 29 through
November 27, 2009 within 30 days.
In a January 13, 2010 report, Dr. Murray D. Robinson, a Board-certified neurosurgeon,
assessed appellant with right-sided lumbar radiculopathy unresponsive to conservative measures
without compressive lesions on MRI scan. He discussed options with her and she decided to
proceed with surgery, specifically a right L4-5, L5-S1 disc removal.
By decision dated January 27, 2010, OWCP denied appellant’s wage-loss compensation
for the period commencing October 29, 2009 because the medical evidence did not demonstrate
that the claimed conditions were related to the established work event. It also denied treatment
for additional conditions as the medical evidence did not demonstrate that the claimed conditions
were related to the established work injury.
In a February 5, 2010 report, Dr. Vanderhoof noted that he did not see appellant initially
following her injury at work, but that he understood appellant had two injuries, one on
December 7, 2006 and another on December 22, 2006. He stated that the slight spur
demonstrated on the December 20, 2006 MRI scan was not caused by the injury but was
4

something that occurs over time. However, Dr. Vanderhoof noted that the repeat MRI scan done
on May 2, 2007 showed a shallow, rightward eccentric, mixed disc protrusion at the L4-5 level
and a shallow disc replacement at the L5-S1 level, which was not reported on the previous MRI
scan of December 20, 2006, and that this certainly could have occurred from the second injury of
December 22, 2006. He then noted that the subsequent MRI scan done on May 27, 2009 showed
an increased injury to the disc at the L4-5 level with a shallow disc displacement and
superimposed herniated nucleus pulposus in the right foraminal and extraforaminal region with
extrusion of disc material superiorly and abutment of the right L4 nerve root. Dr. Vanderhoof
also noted that there was a disc displacement at the L5-S1 level with a more focal protrusion in
the right foraminal and extraforminal region, abutting the right L5 nerve root and that this was a
progression of the disc injury she demonstrated on the MRI scan of May 2, 2007. He noted that
this also could be related to her second injury of December 22, 2006 since there was a definite
change between the MRI scan of December 20, 2006 and May 2, 2007, which was following her
second injury of December 22, 2006 and certainly could have occurred from this second injury.
In a February 12, 2010 report, Dr. Vanderhoof noted that appellant had exacerbating
lower lumbar and right leg pain with a shallow disc displacement at the L4-5 level with a
superimposed herniated nucleus pulposus and a right foraminal and extraforaminal extrusion of
disc material superiorly which resulted in moderate grade biforaminal stenosis. He also noted a
focal disc protrusion at the L5-S1 level into the right foraminal region. Dr. Vanderhoof stated
that he was taking appellant off work at this time as her symptoms were getting progressively
worse.
On February 23, 2010 appellant requested review of the written record. She contended,
inter alia, that she was already experiencing an exacerbation of her symptoms prior to the fall at
Family Dollar. Appellant contended that her worsening condition resulted in major depression
due to chronic pain. She also contended that she loved to work and desired to return to work
when she was better.
On February 24, 2010 appellant filed a claim for compensation for four hours a day for
the period February 1 through March 12, 2010.
On April 29, 2010 OWCP denied appellant’s request for compensation for the period
February 1 through March 12, 2010.
By letter dated May 14, 2010, a representative of the employing establishment stated that
the first job offer he sent appellant was with a report date of August 16, 2009 and that appellant
showed up for the eight-hour-per-day accepted job offer with a note saying that she could only
work four hours a day, and the supervisor sent appellant home as the position could not be
modified to part-time position. He noted that appellant showed up again on October 13, 2009 for
the eight-hour job offer, but once again had a note that stated that she could only work four
hours, but that this time it was limited to six weeks. The representative noted that after six weeks
appellant presented another note extending the time. He also contended that appellant has been
seen multiple times walking, bending, twisting, carrying seemingly with no difficulty. The
representative noted that he saw appellant in a break in her Equal Employment Opportunity
(EEO) hearing do a very quick walk from the Director’s suite to the conference room.

5

By decision dated June 8, 2010, the hearing representative affirmed OWCP’s June 8,
2010 decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.2 To establish a causal relationship between the condition
claimed, as well as any attendant disability, and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
support such a causal relationship.3 Causal relationship is a medical issue, and the medical
evidence required to establish is rationalized medical evidence.4 Rationalized medical evidence
is evidence which includes a physician’s rationalized medical opinion on the issue of whether
there is a causal relationship between the claimed 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 rationalized medical evidence explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5 Neither the
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.6
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbosacral spondylosis without myelopathy at
L5-S1 with encroachment. However, it rejected appellant’s claim that her herniated disc at L4-5
and protruding disc at L5-S1 were causally related to her accepted December 22, 2006 injury.
The Board finds that appellant has not met her burden of proof to establish that she
sustained a herniated disc at L4-5 and protruding disc at L5-S1 causally related to her accepted
injury. The Board does note that appellant has established that she has a herniated disc at L4-5
and protruding disc at L5-S1. Appellant’s MRI scan done on May 2, 2007 showed a shallow,
rightward eccentric, mixed disc protrusion at the L4-5 level and a shallow disc replacement at the
L5-S1 level which was not reported on appellant’s MRI scan of December 20, 2006, taken two
days prior to her employment-related injury. The May 27, 2009 MRI scan showed an increased
injury to the disc at the L4-5 level. This MRI scan also showed that at the L5-S1 level, appellant
had a shallow disc displacement, broad-based with focal protrusion, right foraminal and
extraforminal. However, although she has established that she experienced the noted conditions,
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Jennifer Atkerson, 55 ECAB 317 (2004).

4

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

5

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

6

Ernest St. Pierre, 51 ECAB 623 (2000).

6

she has failed to establish that these conditions were causally related to her employment injury of
December 22, 2009. Dr. Robinson and the radiologists who interpreted appellant’s MRI scans
gave no opinion as to causal relation. The only physician in the record who gave an opinion
regarding causal relationship of these injuries was Dr. Vanderhoof. In his February 5, 2010
report, Dr. Vanderhoof noted that appellant’s herniated disc, which did not appear in her MRI
scan of December 20, 2006 but was in evidence on her May 2, 2007 MRI scan, “certainly could
have occurred from the second injury of December 22, 2006.” With regard to her disc
displacement at the L5-S1 level, he stated that “this also could be related to her second injury of
December 22, 2006 since there was a definite change between her MRI scan of December 20,
2006 and May 2, 2007.”
A medical opinion on causal relationship does not have to be one absolute certainty, but it
must be one of reasonable medical certainty and not speculative or equivocal in nature.7 The
opinion should be expressed in terms of a reasonable degree of medical certainty.8
Dr. Vanderhoof’s opinion that the L4-5 herniated disc “could have” occurred from the
employment injury or that the protruding disc at L5-S1 “could be related” to appellant’s
employment injury is speculative and not sufficient to meet appellant’s burden of proof.
Accordingly, the Board finds that OWCP properly denied her claim for expansion to include a
claim for a herniated disc at L4-5 and a protruding disc at L5-S1.
LEGAL PRECEDENT -- ISSUE 2
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.9 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.10 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.11 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.12
Findings on examination are generally needed to support a physician’s opinion that an
employee is disabled for work. When a physician’s statements regarding an employee’s ability
to work consist only of repetition of the employee’s complaints that he hurt too much to work,
without objective findings of disability being shown, the physician has not presented a medical
opinion on the issue of disability or a basis for payment of compensation.13 The Board will not
7

B.P., Docket No. 10-1593 (issued June 8, 2011).

8

R.L., Docket No. 10-1309 (issued April 8, 2011).

9

See Feridoon Kharabi, 52 ECAB 291 (2001).

10

Id.

11

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

12

C.S., Docket No. 08-2218 (issued August 7, 2008).

13

Kharabi, supra note 9.

7

require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation. For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.14
ANALYSIS -- ISSUE 2
Appellant’s claim was accepted for lumbosacral spondylosis without myelopathy at
L5-S1 with encroachment. OWCP did not accept her claim for herniated disc at L4-5 and
protruding disc at L5-S1.
The Board finds that Dr. Vanderhoof’s note dated October 29, 2009 indicating that
appellant could not work until October 30, 2009 and listing appellant’s diagnosis as sacroiliitis
and radiculopathy is sufficient to allow wage-loss compensation for October 29, 2009. However,
appellant has not submitted sufficient medical evidence to establish that she was disabled from
November 20 through 27, 2009. There is no medical report indicating that she was seen at that
time and was found to be disabled. In his December 10, 2009 report, Dr. Vanderhoof stated that
he was going to give appellant a work excuse for November 20 through 27, 2009. He noted that
she indicated that she was out of work then and that he was out of the office for part of this week
as well. However, as no medical doctor saw appellant during this time period, there is no
contemporaneous medical evidence establishing that she was disabled from November 20
through 27, 2009.
With regard to appellant’s claim for compensation for the period February 1 through
March 12, 2010, she has not submitted any medical evidence indicating that she was disabled for
this period of time due to her accepted injury. Dr. Vanderhoof does indicate in his February 12,
2010 report that he was taking her out of work at that time because her symptoms were getting
progressively worse and she could only stand for about 15 minutes and sit for about 15 minutes
at a time. However, this report addresses appellant’s L4-5 disc displacement and focal disc
protrusion, conditions which were not accepted by OWCP as related to the December 22, 2006
work injury.
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.15 As appellant has not submitted medical evidence to support that
she was disabled due to her employment injury from November 20 through 27, 2009 or from
February 1 through March 12, 2010, OWCP properly denied compensation for these periods of
time.

14

Sandra D. Pruitt, 57 ECAB 126 (2005).

15

William A. Archer, 55 ECAB 674, 679 (2004).

8

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 established that her herniated disc at L4-5 and
protruding disc at L5-S1 is employment related. The Board further finds that appellant has not
established her claim for compensation for November 20 through 27, 2009 and March 12, 2010.
However, the Board finds that appellant has established a claim for compensation for
October 29, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2010 is modified to find that appellant is entitled to wageloss compensation for October 29, 2009. In all other respects, the decision of June 8, 2010 is
affirmed. OWCP’s decision of April 29, 2010 is also affirmed.
Issued: August 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 10-2168
Issued: July 18, 2011

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 August 24, 2010 appellant filed a timely appeal from an April 19, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of a scheduled member or function.
FACTUAL HISTORY
This case is before the Board for the third time. In a decision dated November 4, 1997,
the Board affirmed a February 15, 1995 decision denying appellant’s request for reconsideration
of the termination of his compensation on the grounds that it was untimely and did not establish
1

5 U.S.C. § 8101 et seq.

clear evidence of error.2 By decision dated August 1, 2007, the Board set aside a January 25,
2007 decision finding that appellant had no more than a three percent permanent impairment of
the left lower extremity.3 It determined that the opinion of the second opinion examiner was
insufficient to establish the extent of any permanent impairment and remanded the case for
OWCP to obtain an opinion resolving the issue. The facts and circumstances of the case set forth
in the Board’s prior decisions are hereby incorporated by reference.
In an impairment evaluation dated April 16, 2007, Dr. Mary A. Gonzales, an attending
Board-certified physiatrist, determined that appellant had a five percent whole person
impairment rating using the fourth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) (A.M.A., Guides). On December 4, 2007
OWCP’s medical adviser reviewed Dr. Gonzales’ report and opined that it did not show
additional left lower extremity impairment. He noted that FECA did not provide awards for
abdominal wall impairments or whole person impairments. By decision dated December 20,
2007, OWCP found that appellant had no more than the previously awarded three percent left
lower extremity impairment.
On January 11, 2008 appellant, through his attorney, requested an oral hearing.
Following a preliminary review, on July 10, 2008 OWCP’s hearing representative vacated the
December 20, 2007 decision. She found that OWCP had not followed the Board’s instructions
to further develop the evidence regarding the extent of appellant’s impairment. OWCP’s hearing
representative additionally found that he had not established erectile dysfunction due to the
accepted work injury.
On August 1, 2008 OWCP referred appellant to Dr. Jonathan Clark Race, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated August 19, 2008,
Dr. Race opined that appellant had an impairment due to his hernia repair but not to his left
lower extremity, noting that the etiology of his lower extremity pain was uncertain and that
diagnostic studies were reported to be normal. He concluded that appellant had a five percent
impairment due to his hernia under Table 6-9 on page 136 of the A.M.A., Guides, relevant to
determining impairments of the digestive tract.
On September 26, 2008 OWCP’s medical adviser reviewed Dr. Race’s opinion and noted
that the abdomen was not a scheduled member under FECA. He asserted that appellant had no
impairment of the left lower extremity.
By decision dated October 3, 2008, OWCP denied appellant’s schedule award claim after
finding that he had not established a permanent impairment to a scheduled member or function.
On September 25, 2009 appellant requested reconsideration.
He submitted a
September 14, 2009 report from Dr. Bruce B. McDonald, a surgeon, in support of his request.
2

Docket No. 95-2200 (issued November 4, 1997). OWCP accepted that appellant sustained abdominal strain, an
inguinal hernia, left ilioninguinal nerve entrapment, and left scrotal varices due to an October 21, 1985 work injury.
By decision dated September 14, 1992, it terminated his compensation after finding that he had no further disability
causally related to his accepted work injury.
3

Docket No. 07-817 (issued August 1, 2007).

2

Dr. McDonald described appellant’s pain performing various activities.
On physical
examination, he found that he experienced extreme pain of the inguinal area. Dr. McDonald
measured full range of motion and strength of the lower extremities. He stated, “There is an area
on the medial thigh which is approximately the size of my hand which exhibits numbness to pin
prick and tenderness to light palpation.” Citing the fifth edition of the A.M.A., Guides,
Dr. McDonald found that appellant had a 15 percent impairment due to a “[c]lass 2 herniarelated impairment under the digestive system” and an additional 3 percent impairment due to
pain, for a total whole person impairment of 18 percent.”
On November 2, 2009 OWCP’s medical adviser noted that the digestive system was not a
scheduled member under FECA and that the fifth edition of the A.M.A., Guides was no longer
applicable to determine permanent impairments.
He recommended a second opinion
examination to determine whether appellant was entitled to a schedule award due to pain.
By letter dated December 11, 2009, OWCP referred appellant to Dr. William W. Janes, a
Board-certified physiatrist, for an impairment evaluation. On January 20, 2010 Dr. Janes
discussed his complaints of left foot, left hip and low back pain with numbness and tingling in
the lower back, left foot and left groin. He interpreted a 2005 magnetic resonance imaging
(MRI) scan study as showing disc material touching but not compressing the left L4 nerve root
on the right and a tear on the left in the annulus, with disc desiccation and a broad-based disc
bulge at L4-5 and L5-S1 and a disc bulge impinging on the anterior aspect of the thecal sac.
Dr. Janes found full strength of the lower extremities and tenderness with some loss of sensation
in the testicular area. Utilizing the sixth edition of the A.M.A., Guides, he identified the
diagnosis as a left inguinal hernia using Table 6-10 on page 122. Dr. Janes found a class 2
impairment or 10 percent whole person impairment. He stated, “[Appellant] does have injury to
his ilioinguinal nerve; however, I feel the hernia impairment from Table 6-10 takes this into
account.”
On March 17, 2010 OWCP’s medical adviser found that there was no lower extremity
impairment based on an ilioinguinal nerve injury. He noted that the sixth edition of the A.M.A.,
Guides described impairments due to a peripheral nerve injury at section 16.4 on page 541 and
that the ilioinguinal nerve was depicted in Figure 16-3 on page 537. OWCP’s medical adviser
found, however, that the sixth edition of the A.M.A., Guides did not provide a lower extremity
impairment for the ilioinguinal nerve in the accompanying diagnosis-based tables.
By decision dated April 19, 2010, OWCP denied modification of its October 3, 2008
decision.
On appeal, appellant argues that he has an 18 percent impairment as found by
Dr. McDonald in his September 14, 2009 report. He further notes that his pain has increased.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the Diagnosed Condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The Net Adjustment Formula is
GMFH-CDX + GMPE-CDX + GMCS-CDX.
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.9 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.10 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of “any other important external or internal organ of the body as determined by
the Secretary of Labor.11 The Secretary of Labor has made such a determination, and pursuant to
the authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis,
testicle, ovary, uterus and tongue to the schedule.12
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.13 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides 494-531.

9

See Leroy M. Terska, 53 ECAB 247 (2001).

10

5 U.S.C. § 8107(c).

11

Id. at § 8122(c)(22).

12

20 C.F.R. § 10.404; Henry B. Ford, III, 52 ECAB 220 (2001).

13

Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young, 55 ECAB 575 (2004).

4

justice is done.14 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.15
ANALYSIS
OWCP accepted that appellant sustained an abdominal strain, an inguinal hernia and left
ilioinguinal nerve entrapment, or left mononeuritis of the lower limb and left scrotal varices due
to an October 21, 1985 employment injury. On August 1, 2007 the Board determined that the
opinion of the second opinion examiner was insufficient to establish the extent of any permanent
impairment of the left lower extremity and remanded the case for further development. In a
report dated August 19, 2008, Dr. Race, OWCP’s referral physician, found that appellant had a
five percent impairment due to his hernia according to Table 6-9 of the sixth edition of the
A.M.A., Guides. Section 8107 of FECA, however, does not provide for a schedule award for a
hernia.16 The regulations similarly provide no entitlement for a schedule award for a hernia.17
As noted, a schedule award is not payable for any member, function or organ of the body not
listed in section 8107 of FECA or its implementing regulations; consequently, Dr. Race’s
opinion does not support entitlement to a schedule award.18
In a report dated September 14, 2009, Dr. McDonald found that, according to the fifth
edition of the A.M.A., Guides, appellant had a 15 percent permanent impairment due to his
hernia and an additional 3 percent impairment due to pain, for a total whole person impairment
of 18 percent. As discussed, however, FECA does not provide an impairment rating for hernias.
Additionally, OWCP currently uses the sixth edition of the A.M.A., Guides to determine the
extent of permanent impairments. A medical opinion not based on the appropriate edition of the
A.M.A., Guides has diminished probative value in determining the extent of a claimant’s
permanent impairment.19 Moreover, FECA does not provide for impairment of the whole
person.20
At the recommendation of OWCP’s medical adviser, OWCP referred appellant for
another second opinion examination. In a report dated January 20, 2010, Dr. Janes reviewed his
complaints of pain in his left foot, left hip and low back and tingling and numbness in the left
foot, left groin and lower back and some loss of sensation in the testicle area. He discussed the
2005 findings on MRI scan study of a disc bulge at L4-5 impinging the thecal sac and disc
desiccation at L4-5 and L5-S1. Dr. Janes found that appellant had a 10 percent whole person
impairment due to his hernia under the sixth edition of the A.M.A., Guides. He advised that
14

Richard E. Simpson, 55 ECAB 490 (2004); Lourdes Davilla, 45 ECAB 139 (1993).

15

Melvin James, 55 ECAB 406 (2004).

16

Supra note 4.

17

Supra note 5.

18

See J.D., 58 ECAB 254 (2007).

19

Fritz A. Klein, 53 ECAB 642 (2002).

20

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

5

there was an impairment of the ilioinguinal nerve but that he believed that this was included in
the hernia impairment at Table 6-10.
OWCP medical adviser reviewed Dr. Janes’ report and found that his determination that
appellant had an impairment due to a hernia did not conform with FECA guidelines. He further
found that the A.M.A., Guides did not provide a rating for the lower extremity due to an
impairment of the ilioinguinal nerve. Consequently, OWCP’s medical adviser found that
appellant was not entitled to a schedule award for a left lower extremity impairment. The
A.M.A., Guides, however, provides, “In the event that a specific diagnosis is not listed in the
diagnosed-based impairment grid, the examiner should identify a similar listed condition to be
used as a guide to the impairment calculation. The rationale for this decision should be
described.”21 Furthermore, once OWCP undertakes development of the record, it has the
responsibility to do so in a proper manner.22 Dr. Janes found that appellant had an impairment of
the ilioinguinal nerve and some loss of sensation in the testicles. It is not clear from Dr. Janes’
report whether appellant has a lower extremity impairment or impairment of the testicles due to
the accepted employment injury. As OWCP developed the issue, it should secure a medical
opinion that resolves the question of whether appellant sustained a permanent impairment of the
left lower extremity or other scheduled member due to his accepted employment injury.23 The
medical opinion should address whether any impairment of the lower extremity resulted from the
accepted conditions. After such further development as deemed necessary, OWCP should issue
an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

21

Id. at 499.

22

See Melvin James, supra note 15.

23

See Peter C. Belkind, supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 18, 2011
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, WAVERLY STATION, )
Baltimore, MD, Employer
)
__________________________________________ )
C.W., Appellant

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

Docket No. 19-1739
Issued: May 28, 2020

Case Submitted on the Record

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

On August 16, 2019 appellant filed a timely appeal from a July 15, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 19-1739.1
On October 30, 2018 appellant, then a 29-year-old city carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on October 27, 2018 she sustained a broken right ankle
when she slipped and fell while in the performance of duty.2 She alleged that the incident took
place at 3:15 p.m. Appellant first notified her supervisor, stopped work, and received medical care
on October 27, 2018, the date of the claimed injury. On the reverse side of the form a customer
service supervisor, S.A., controverted the claim stating that appellant did not know the address

1

The Board notes that, following the July 15, 2019 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.
2
It appears on his Form CA-1 the appellant inadvertently noted his injury occurred on October 27, 2019; however,
the form was signed on October 27, 2018 and emergency medical treatment for her fracture was sought that date.

where the injury occurred and could not explain how the injury occurred, only stating that she was
going up some steps and heard something pop in her leg.
By development letter dated November 1, 2018, OWCP advised appellant that the evidence
of record was insufficient to establish her claim. It noted that she was employed as a personnel
security specialist by the Department of Veterans Affairs and it had received her claim for a
traumatic injury filed on October 16, 2018 alleging an August 15, 2018 injury which resulted from
being pushed and assaulted by her supervisor at work. OWCP reported that it did not receive any
other documentation with her claim form and advised her of the medical evidence necessary to
establish her claim. It further reported that appellant had failed to substantiate the factual elements
of her claim and requested that she respond to the provided questionnaire. In a series of questions,
appellant was requested to provide additional details pertaining to the October 27, 2018 alleged
assault, circumstances surrounding the incident, whether there was a police or agency investigative
report, whether there were any witnesses to the assault, if there was any animosity between
appellant and the assailant, and why she waited two months to file a Form CA-1. OWCP afforded
appellant 30 days to provide the necessary information.
In support of her claim, appellant submitted discharge instructions and a work/school note
dated October 27, 2018 which documented treatment for a tibial and fibular fracture on that date
at 3:50 p.m. A November 7, 2018 work status note was also provided by her physician indicating
that she should remain out of work until February 7, 2018.
By decision dated December 4, 2018, OWCP denied appellant’s claim, finding the
evidence of record was insufficient to establish that the October 27, 2018 employment incident
occurred as alleged. It noted that although the November 1, 2018 development letter sent was
issued in error and contained the incorrect job title, agency, and date of filing, appellant failed to
respond to the factual questionnaire or refute the information provided in the letter, and therefore,
had not substantiated the factual element of her claim.
On December 14, 2018 appellant requested an oral hearing before OWCP’s hearing
representative. In support of her claim, she submitted a December 28, 2018 work status report, a
March 13, 2019 work status report, and a March 13, 2019 progress note.
A hearing was held on April 25, 2019 where appellant described the October 27, 2018
employment incident when she was delivering mail and slipped on a tarp and broke her right ankle.
She reported that immediately after the incident, a neighbor came to help her and called 911.
Appellant noted that she attempted to call the office, but could not get in contact with anyone so
she called a fellow carrier and asked him to notify management. She testified that she was
transported to the hospital by ambulance and described her course of medical treatment, stating
that she subsequently underwent surgery and had plates and screws placed in her right ankle.
Appellant indicated stopped work on the date of injury and returned to light-duty work on
February 21, 2019. The record was held open for 30 days.
By decision dated July 15, 2019, OWCP’s hearing representative affirmed the December 4,
2018 decision, finding that appellant had not provided sufficient evidence to establish that she
sustained an injury on October 27, 2018, as alleged.

2

The Board, having duly reviewed the case record submitted by OWCP, finds that this case
is not in posture for decision.3
OWCP’s procedures provide that OWCP is responsible for requesting evidence.4 The
procedures further provide that the claims examiner should contact the claimant in writing to
obtain evidence and should specifically request the information needed, tailored to the specifics of
the individual case.5 In this instance, OWCP improperly developed the claim as the November 1,
2018 development letter requested factual information pertaining to an unrelated assault claim
which was never alleged by appellant.6 The questionnaire requested detailed information
pertaining to an August 15, 2018 work-related assault and failed to inquire about any aspect of her
alleged October 27, 2018 right ankle injury while delivering mail on her mail route. Furthermore,
OWCP’s December 4, 2018 decision acknowledged that the November 1, 2018 development letter
was issued in error, but continued to deny the claim for fact of injury finding that appellant failed
to respond to or refute the information provided to her in the letter. By decision dated July 15,
2019, OWCP’s hearing representative affirmed the December 4, 2018 decision. The Board notes
that the record does not indicate that OWCP’s development letter was resent or reissued.7 Because
appellant did not receive a properly issued development letter, she was not afforded an opportunity
to submit the required evidence in support of her claim based on detailed instructions advising her
of the evidence required to demonstrate her entitlement to compensation.8
As appellant failed to receive proper guidance from OWCP regarding the specific evidence
required to establish a traumatic injury claim, the Board finds that this case must be remanded for
further development.9 Following such further development as it deems necessary, OWCP shall
issue a de novo decision on appellant’s claim.10

3

See T.Z., Docket No. 17-0679 (issued May 9, 2019).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4 (June 2011).

5

Id. at Chapter 2.800.5. See also V.R., Docket No. 16-1167 (issued December 22, 2016).

6

See P.D. Docket No. 19-0763 (issued November 26, 2019).

7

R.P., Docket No. 18-0909 (issued October 28, 2019); E.C., Docket No. 11-1774 (issued February 27, 2012).

8

Supra note 4.

9

D.K., Docket No. 18-0604 (issued October 21, 2019). See S.S., Docket No. 17-0871 (issued November 6, 2017).

10

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). The Board has exercised its discretion and, given the disposition of the case, denies the request,
finding that the arguments on appeal have been addressed based on the case record.

3

IT IS HEREBY ORDERED THAT the July 15, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order.
Issued: May 28, 2020
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Pine Valley, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1279
Issued: January 21, 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 August 23, 2021 appellant filed a timely appeal from a July 28, 2021 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 over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted June 14, 2021 employment incident.

1

The Board notes that, following the July 28, 2021 decision, appellant submitted additional evidence to OWCP.
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.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 17, 2021 appellant, then a 30-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on June 14, 2021 he sustained bruising and swelling to his right
eye, scrapes and swelling to his left knee and right elbow, and experienced pain in his right thumb
when an aggressive man punched him while in the performance of duty. On the reverse side of
the claim form, appellant’s supervisor, S.S., acknowledged that appellant was injured in the
performance of duty. Appellant did not stop work.
In a development letter dated June 22, 2021, OWCP notified appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
On June 14, 2021 the employing establishment executed an authorization for examination
and/or treatment (Form CA-16). J.B., the authorizing official, listed the date of injury as June 14,
2021 and described appellant’s injury as an impact injury to the face and scrapes to the right elbow
and left knee.
An emergency department note of even date signed by Jessica Fain, a physician assistant,
related that appellant was punched in the right eye by an intoxicated individual resisting arrest.
Appellant reported right eye pain and contusion as well as an abrasion to his left knee. Ms. Fain
noted the existence of a bruise underneath his right eye, but found no tenderness with palpitation
of the zygomatic and no pain with extraocular movement. She diagnosed a right eye contusion.
In a discharge record of even date, Ms. Fain noted appellant’s right eye pain. Her examination
revealed no sign of damage to appellant’s eye.
By decision dated July 28, 2021, OWCP accepted that the June 14, 2021 employment
incident occurred, as alleged, but denied the claim as appellant had not established a diagnosed
medical condition causally related to the accepted employment incident. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning 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

3

Id.

4

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

2

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. There
are two components involved in establishing fact of injury. The first component to be established
is that the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged. The second component
is whether the employment incident caused a personal injury. 7
The evidence required to establish causal relationship between a claimed specific condition
and an employment incident is rationalized medical opinion evidence. 8 The opinion of the
physician must be based on a complete factual and medical background of the employee, m ust 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. 9
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a right eye contusion
causally related to the accepted June 14, 2021 employment incident.
The Board notes that, pursuant to the Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Development of Claims, Chapter 2.800.6(a) (June 2011), if a condition reported is a minor
one, such as a burn, laceration, insect sting, or animal bite, which can be identified on visual
inspection by a lay person, a case may be accepted without a medical report and no development
of the case need be undertaken, if the injury was witnessed or reported promptly, and no dispute
exists as to the occurrence of an injury, and no time was lost from work due to disability. 10
In a June 14, 2021 emergency department report, Ms. Fain diagnosed a right eye contusion.
As the evidence of record establishes that appellant’s employment incident resulted in a visible
injury, the Board finds that appellant has met his burden of proof to establish a right eye contusion
5

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

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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).
8

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).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

3

causally related to the accepted June 14, 2021 employment incident. Upon return of the case
record, OWCP shall make payment and/or reimbursement of medical expenses with regard to the
accepted contusion to the right eye.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish a right eye contusion
causally related to the accepted June 14, 2021 employment injury.11
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 21, 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

11

A 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. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

4