United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Glynco, GA, Employer
__________________________________________

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

Docket No. 13-329
Issued: July 24, 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 November 28, 2012 appellant, through her attorney, filed a timely appeal from an
August 6, 2012 merit decision of the Office of Workers’ Compensation Programs. 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.
ISSUES
The issues are: (1) whether OWCP properly terminated compensation benefits effective
March 8, 2012; and (2) whether appellant has met her burden of proof to expand the acceptance
of her claim to include a cervical condition.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 22, 2008, the
Board reversed OWCP decisions dated December 21, 2006 and March 30, 2007 terminating
1

5 U.S.C. § 8101 et seq.

appellant’s compensations benefits.2 The Board also set aside decisions dated October 31 and
December 4, 2006 and June 13, 2007 denying her request for expansion of her claim to include a
cervical condition and authorization for treatment for her cervical condition due to an unresolved
conflict in the medical opinion evidence. The Board found an unresolved conflict in medical
opinion between Dr. Mark A.P. Filippone,3 a Board-certified physiatrist, and Dr. A.R. Sayed
Bakhaty,4 a physician, for appellant and Dr. Zohar Stark,5 a second opinion Board-certified
orthopedic surgeon, as to whether appellant’s ongoing residuals and disability were due to her
accepted right shoulder contusion and labral tear and whether her diagnosed cervical disc disease
was caused or contributed to by the May 22, 2001 employment injury. In the second appeal on
September 8, 2010, the Board reversed OWCP’s decisions dated July 30, 2008 and February 19,
2009 with respect to the termination of appellant’s benefits.6 The Board found the evidence of
record to contain inadequate documentation pertaining to the selection of Dr. Robert Dennis, a
Board-certified orthopedic surgeon, as the impartial medical specialist. The Board also found
that the case was not in posture for a decision as to whether appellant’s claim should be
expanded to include a cervical condition and authorization for treatment of her cervical condition
due to an unresolved conflict in the medical opinion evidence. The history of the case from the
prior decisions is hereby incorporated by reference.7
On remand, OWCP placed appellant on the periodic rolls for temporary total disability
following her election to receive benefits under FECA.
On March 24, 2011 Dr. Bakhaty reported that appellant continued to complain of right
shoulder and neck pain. Diagnoses included: post-traumatic tension headache; post-traumatic
cervical radiculopathy; post-traumatic cervical facet joint pain syndrome; status post right
shoulder surgery with partial improvement followed by a recurrence of pain; status posttraumatic cervical disc herniation with some improvement after fusion surgery followed by a

2

Docket No. 07-2311 (issued April 22, 2008).

3

Dr. Filippone diagnosed right shoulder pain, right cervical paraspinal pain and C5-6 cervical radiculopathy
which he attributed to her employment injury.
4

Dr. Bakhaty diagnosed right-sided C5-6 radiculopathy, C5-6 post-traumatic disc bulge, post-traumatic
myofascial syndrome, post-traumatic right shoulder tendinitis with persistent complaints following surgery, which
he attributed to her employment injury.
5

Dr. Stark concluded that appellant had no disability attributable to the May 22, 2001 employment injury. He
attributed her ongoing symptoms to her cervical spine degenerative disc disease, which was not caused or
aggravated by the employment injury.
6

Docket No. 09-1361 (issued September 8, 2010).

7

On May 22, 2001 appellant, then a 31-year-old corrections officer, filed a traumatic injury claim alleging that
she injured her right shoulder on that date while shooting a shotgun. OWCP accepted the claim for right shoulder
contusion and labral tear and authorized right shoulder arthroscopic surgery, which occurred on October 20, 2005.
Appellant was reassigned to a secretarial position effective November 12, 2001. OWCP accepted her June 8 and
September 8, 2005 recurrence claims. Appellant was released to full-duty work on January 6, 2006 by
Dr. Lawrence I. Barr, a treating osteopath. On October 10, 2006 OWCP placed appellant on the periodic rolls for
temporary total disability.

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recurrence of her symptoms; and status post work-related May 22, 2001 injury with persistent
chronic complaints of acute exacerbation following right shoulder and neck fusion surgeries.
On April 15, 2011 OWCP referred appellant to Dr. Stanley R. Askin, a Board-certified
orthopedic surgeon, and Dr. Saeid Alemo-Hammad, a Board-certified neurological surgeon, for
second opinion evaluations as to whether her claim should be expanded to include a cervical
condition, whether she had any disability due to her accepted conditions and whether her
accepted conditions had resolved.
In a May 13, 2011 report, Dr. Askin, based upon a review of the medical evidence,
statement of accepted facts, medical history and physical examination, diagnosed right shoulder
contusion and right shoulder labral tear. He related that appellant was involved in an automobile
accident on April 2, 2011. Right shoulder range of motion included 150 degrees abduction and
160 decrees forward flexion. Dr. Askin reported scapultoracic motion was without winging and
crepitus; a negative Neer/Hawkins test; 45 degrees bilateral cervical rotation; and 15 degrees
cervical extension. He concluded that appellant no longer had any residuals or disability due to
the accepted conditions of right shoulder contusion and labral tear. In support of this conclusion,
Dr. Askin noted the lack of any objective test results or clinical findings. He also opined that
appellant’s claim should not be expanded to include a spinal condition.
In a May 16, 2011 report, Dr. Alemo-Hammad, based upon a review of the medical
evidence and history, statement of accepted facts and physical examination, diagnosed bilateral
C2-3 cephalgia, status post C4-5 and C5-6 anterior cervical discectomy and fusion, symptomatic
cervical facet joint arthropathy, symptomatic Arnold-Chiari malformation and status post right
shoulder arthroscopy and treatment for supraspinatus and biceps tendinitis and right shoulder
labral tear. He opined that appellant’s cervical condition was unrelated to the accepted May 22,
2001 employment injury based on the lack of any supporting study. Dr. Alemo-Hammad also
opined that appellant no longer had any residuals or disability due to her employment-related
cervical condition as it had resolved.
On May 26, 2011 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based on the second opinion reports from Drs. Askin and AlemoHammad who found that appellant no longer had any residuals or disability due to her accepted
employment injury.
By decision dated June 27, 2011, OWCP finalized the termination of appellant’s
compensation benefits effective July 3, 2011.
In a June 30, 2011 letter, appellant’s counsel requested an oral hearing before an OWCP
hearing representative, which was held on October 11, 2011.
On July 12, 2011 OWCP received a June 23, 2011 report from Dr. Filippone who
provided physical findings and opined that appellant’s cervical radiculopathy should be included
as an accepted condition due to her May 22, 2001 employment injury.
By decision dated November 23, 2011, the hearing representative vacated the termination
of benefits as he found an unresolved conflict in the medical opinion evidence on the issues of

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whether appellant continued to have residuals and disability due to her accepted May 22, 2001
employment injuries and whether the claim should be expanded to include a cervical condition.
On January 25, 2012 OWCP referred appellant to Dr. Stuart L. Trager, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Drs. Filippone and Bakhaty, for appellant and Drs. Askin8 and Alemo-Hammad on the issues of
whether appellant had any continuing disability due to her accepted employment injury and her
diagnosis.
In a February 22, 2012 report, Dr. Trager, based upon a review of the medical evidence,
statement of accepted facts and physical examination, opined that appellant’s cervical condition
was unrelated to her accepted May 22, 2001 employment injury and her accepted right shoulder
injury had resolved with no residuals. Physical findings included bilateral shoulder flexion to
140 degrees, right shoulder 120 degrees abduction, negative impingement sign and severely
limited cervical range of motion. Dr. Trager stated that he believed that it was not possible to
establish that appellant’s cervical condition was related to the employment injury. In support of
this conclusion, he noted that at the time of the injury there were no initial findings or complaints
regarding her neck. As there were no neck complaints or findings made immediately following
appellant’s employment injury, Dr. Trager concluded that the evidence of record was insufficient
to establish that she sustained a neck condition as a result of the employment injury. In support
of this conclusion, he noted the lack of any symptoms or findings following her injury and the
comprehensive work-up from Dr. Marc A. Cohen, a Board-certified orthopedic surgeon,
negating any neck condition. Dr. Trager further opined that appellant’s shoulder injury had
resolved based on her release to full-duty work in 2006 based on a finding of full range of
motion in her shoulder. Lastly, he opined that she had no disability or residuals from her
accepted right shoulder conditions which would preclude her from working.
By decision dated March 8, 2012, OWCP terminated appellant’s compensation benefits
effective that day.
On March 15, 2012 appellant’s counsel requested an oral hearing before an OWCP
hearing representative, which was held on June 6, 2012.
In a March 30, 2012 report, Dr. Filippone provided physical findings and reiterated his
opinion that appellant’s cervical condition was a result of her accepted May 22, 2001
employment injury. He also opined that her benefits should not be terminated as she continued
to have residuals and disability as a result of her accepted May 22, 2001 employment injury.
By decision dated August 6, 2012, the hearing representative affirmed the March 8, 2012
termination decision.

8

OWCP incorrectly identified one of the second opinion physicians creating the conflict as St. Stark.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.9 It may not terminate compensation
without establishing that disability ceased or that it was no longer related to the employment.10
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.12 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.13
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.”14 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 8, 2012. The accepted conditions are right shoulder
condition and labral tear. OWCP properly determined that a conflict in medical evidence had
been created between the opinions of appellant’s treating physician, Dr. Filippone and
Dr. Bakhaty and Dr. Askin and Dr. Alemo-Hammad, OWCP referral physicians, regarding
whether appellant had residuals of the accepted conditions, pursuant to 5 U.S.C. § 8123(a). It
referred appellant to Dr. Trager, Board-certified in orthopedic surgery, for an impartial medical
evaluation.

9

S.F., 59 ECAB 642 (2008); I.J., 59 ECAB 408 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart,
54 ECAB 824 (2003); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).
10

I.J., id.; J.M., 58 ECAB 478 (2007); Elsie L. Price, 54 ECAB 734 (2003); Anna M. Blaine, 26 ECAB
351 (1975).
11

See T.P., 58 ECAB 524 (2007); J.M., id.; Del K. Rykert, 40 ECAB 284 (1988).

12

T.P., id; Darlene R. Kennedy, 57 ECAB 414 (2006).

13

T.P., supra note 11; Kathryn E. Demarsh, 56 ECAB 677 (2005); James F. Weikel, 54 ECAB 660 (2003);
Furman G. Peake, 41 ECAB 361, 364 (1990).
14

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
15

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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OWCP accepted that appellant’s May 22, 2001 employment incident caused a right
shoulder condition and labral tear. Appellant’s compensation benefits were terminated effective
March 8, 2012 based upon the opinion of the impartial medical specialist, Dr. Trager. On
August 6, 2012 an OWCP hearing representative affirmed the March 8, 2012 decision
terminating her compensation and the determination that her cervical condition was unrelated to
the accepted May 22, 2001 employment injury. The Board finds that OWCP met its burden of
proof to terminate appellant’s wage-loss and medical compensation.
Dr. Trager conducted an impartial medical examination on February 22, 2012 as well as
reviewing appellant’s history of injury and medical history. He diagnosed a right shoulder
condition and labral tear based on appellant’s employment injury and medical history.
Dr. Trager concluded that there was no objective evidence supporting any disability due to her
accepted right shoulder condition particularly as she had been released to full duty by her
physician. Moreover, he noted that appellant had a full range of motion in her right shoulder and
that any employment-related disability or residuals had resolved.
The Board finds that Dr. Trager’s report is entitled to the special weight of the medical
evidence. Dr. Trager provided a detailed report reviewing the medical records and physical
examination findings. He explained why he determined that appellant’s right shoulder
conditions had resolved based on her release to full-duty work in 2006 by her then treating
physician. Dr. Trager opined that she was not disabled from working due to right shoulder
conditions as the accepted employment injury had resolved. As his report is based on a proper
factual history and provided findings and medical reasoning, supporting his conclusions, the
Board finds that OWCP met its burden of proof to terminate appellant’s compensation and
medical benefits.
On appeal, counsel asserts that Dr. Trager’s opinion was insufficiently rationalized to
represent the weight of the medical evidence. As found above, Dr. Trager’s opinion was entitled
to the special weight of the medical evidence of an impartial medical examiner as it was detailed,
well rationalized and based on a complete factual and medical history.
Counsel also argued that the statement of accepted facts was flawed as it failed to
accurately describe the physical requirements of appellant’s position or note her cervical and
shoulder surgeries. The Board finds that the statement of accepted facts was not incomplete and
properly identified appellant’s accepted conditions, surgery related to her accepted shoulder
injury, her date-of-injury position and work history. In the February 22, 2012 report, Dr. Trager
acknowledged her employment and medical history and noted the medical reports he reviewed.
The Board further finds that appellant was not deprived of due process. OWCP provided a
pretermination notice to appellant before terminating her compensation in its June 27, 2011
decision. An OWCP hearing representative found a conflict in the medical opinion evidence on
November 23, 2011 and instructed appellant to be placed back on the periodic rolls. Appellant
was on notice regarding the possibility that her benefits would be terminated based on the
referral for an impartial medical examination.

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LEGAL PRECEDENT -- ISSUE 2
A claimant seeking benefits under FECA16 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,17 including that he or she
sustained an injury in the performance of duty and that any specific condition or disability for
work for which he or she claims compensation is causally related to that employment injury.18
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence.19 The claimant must submit a rationalized medical opinion that supports a
causal connection between her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.20
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.”21 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.22
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any additional medical
conditions causally related to her accepted injury. OWCP accepted that she sustained a right
shoulder contusion and labral tear as a result of the accepted employment related May 22, 2001
shooting a gun. Appellant contends that she also sustained a cervical condition as a result of the
accepted employment injury. The Board finds that appellant failed to establish that her claim
should be expanded to include a cervical condition
As noted above, OWCP properly determined that a conflict in medical evidence had been
created between the opinions of appellant’s treating physician, Dr. Filippone and Dr. Bakhaty
16

5 U.S.C. §§ 8101-8103.

17

C.B., Docket No. 08-2268 (issued May 22, 2009); J.P., 59 ECAB 178 (2007); Amelia S. Jefferson, 57 ECAB
183 (2005)
18

W.W., Docket No. 09-1619 (issued June 2, 2010); G.T., 59 ECAB 447 (2008); Frankie A. Farinacci, 56 ECAB
723 (2005); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
19

W.D., Docket No. 09-658 (issued October 22, 2009); T.H., 59 ECAB 388 (2008); Elizabeth H. Kramm
(Leonard O. Kramm), 57 ECAB 117 (2005); Thomas L. Agee, 56 ECAB 465 (2005).
20

D.U., Docket No. 10-144 (issued July 27, 2010); D.G., 59 ECAB 734 (2008); Donald W. Wenzel, 56 ECAB
390 (2005).
21

Supra note 13.

22

Supra note 14.

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and Dr. Askin and Dr. Alemo-Hammad, OWCP referral physicians, regarding whether
appellant’s claim should be expanded to include a neck condition. It referred appellant to
Dr. Trager, Board-certified in orthopedic surgery, for an impartial medical evaluation.
Dr. Trager’s extensive review of the medical records led him to opine that her neck
condition was unrelated to the accepted employment injury. He concluded, based upon his
physical examination and a review of the objective and medical evidence, including an extensive
workup performed by Dr. Cohen, that appellant’s neck condition was not attributable to the
accepted May 22, 2001 employment injury. Dr. Trager also noted the lack of any neck
complaints or findings immediately following the injury as additional support for his conclusion
that her neck condition was unrelated to the accepted May 22, 2001 employment injury.
The Board finds that Dr. Trager’s report was entitled to the special weight of the medical
evidence. Dr. Trager provided a detailed report reviewing the medical records and physical
examination findings. He provided reasoning as to why he found appellant’s cervical condition
to be unrelated to the accepted May 22, 2001 employment injury. Dr. Trager’s report is
sufficient to carry the weight of an independent medical specialist. It is based on a proper factual
history, provided findings and medical reasoning, supporting his conclusions. As such, the
Board finds that appellant failed to meet her burden of proof to establish that her claim should be
expanded to include a neck condition.
After Dr. Trager’s examination appellant submitted a March 30, 2012 report from
Dr. Filippone, who reiterated his opinion that appellant’s cervical condition was a result of her
accepted May 22, 2001 employment injury and that her benefits should not be terminated.
Dr. Filippone was on one side of the conflict that Dr. Trager resolved and this report is
insufficient to overcome that of Dr. Trager or to create a new medical conflict.23 Consequently,
the medical evidence submitted after Dr. Trager’s report is insufficient to overcome his report or
to create another conflict in the medical evidence.
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 OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 2012. The Board further finds that she failed to establish
that she sustained cervical condition causally related to the May 22, 2001 employment injury.

23

See S.J., Docket No. 09-1794 (issued September 20, 2010) (submitting a report from a physician who was on
one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict). See also Michael Hughes, 52
ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 6, 2012 is affirmed.
Issued: July 24, 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
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-2089
Issued: March 13, 2014

Case Submitted on the Record

ORDER GRANTING MOTION TO REMAND
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 12, 2013 appellant filed an appeal with the Board of an August 22, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
wage-loss compensation from January 26 to 31, 2013. The appeal was docketed as No. 13-2089.
On December 19, 2013 the Director of OWCP filed a motion to remand the case. The
motion stated that the Director was persuaded that the case was not in posture for decision. The
Director agreed with appellant that the medical evidence from the attending internist, Dr. Ronald
Hickombottom, was sufficient to establish an employment-related disability for the period
claimed.
The Board has reviewed the record and finds that the Director’s motion should be
granted. Accordingly, the case will be remanded to OWCP for calculation and payment of
appellant’s requested compensation benefits in accord with the motion to remand.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 22, 2013 is set aside and the case remanded to further
action consistent with this order of the Board.
Issued: March 13, 2014
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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Meridian, ID, Employer
__________________________________________

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

Docket No. 10-1302
Issued: March 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 8, 2010 appellant filed a timely appeal of an October 14, 2009 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than five percent impairment of her right lower
extremity and seven percent impairment of her left lower extremity for which she received
schedule awards.
On appeal appellant argued that she was entitled to a schedule award for spinal
impairment.
FACTUAL HISTORY
On January 18, 2006 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim alleging that she had developed joint disease and arthritis of the left thumb, back,
knees and right foot. She attributed her condition to heavy lifting, walking and repetitive thumb

motions performing her job duties. The Office accepted appellant’s claim for permanent
aggravation of degenerative arthritis of the lumbar spine with spondylolisthesis at L4-5, facet
joint arthritis, osteoarthritis of the left knee, left thumb and right foot. Appellant briefly returned
to work and the Office accepted that she sustained a recurrence of total disability beginning
April 13, 2007. She returned to light-duty work on August 20, 2007.
On June 7, 2007 Dr. Paul J. Mantalbano, a Board-certified orthopedic surgeon, performed
an L4-5 laminectomy including bilateral L4 complete medial facetectomy, resection of left L4-5
synovial cyst, L4-5 posterior interlaminar interbody arthrodesis, placement of prosthetic Peek
device, L4-5 posterolateral transverse process arthrodesis, right iliac crest bone graft harvest and
morselized allograft.
Appellant’s attending physician, Dr. Monte H. Moore, completed a report on
September 5, 2007 and found that appellant had reached maximum medical improvement. He
noted appellant’s symptoms of aching pain in the left knee, numbness in the right leg and foot
and aching discomfort in the lower back with numbness in the gluteal area and anterior proximal
thighs. Dr. Moore found that appellant ambulated with a normal gait and had full range of
motion of her hips. He evaluated appellant’s left first carpometacarpal joint and found mild joint
enlargement without crepitus. Radial abduction was 50 degrees and abduction was two
centimeters while opposition was five centimeters. Appellant had left knee flexion of 118
degrees and full extension with mild crepitus and joint line tenderness. In regard to her left
lower extremity, the first metatarsal phalangeal joint demonstrated 32 degrees of dorsiflexion, 40
degrees of flexion with medial enlargement and mild tenderness. Appellant had normal strength,
but an absent right Achilles reflex and trace reflex at the bilateral quadriceps tendons. Dr. Moore
evaluated appellant’s condition in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.1 He found that a cartilage
interval of three millimeters was in the left knee was seven percent impairment of the left lower
extremity. Dr. Moore found that appellant had six percent impairment of her left thumb or two
percent impairment of the upper extremity. He granted appellant whole person impairment due
to her spine.
Appellant returned to work on November 10, 2007. She filed a notice of recurrence of
disability on January 2, 2008. By decision dated February 15, 2008, the Office denied
appellant’s claim for recurrence of disability.
The district medical adviser reviewed Dr. Weaver’s report on April 24, 2008 and stated
that appellant had not yet reached maximum medical improvement as her spinal surgery was
only three months earlier.
On January 14, 2009 appellant requested a schedule award. In a letter dated January 15,
2009, the Office requested that she obtain a medical report addressing her permanent impairment
for schedule award purposes. In a report dated May 13, 2009, Dr. Moore noted that appellant
had degenerative arthritis of the left knee and had undergone and arthroscopy. He also noted
degenerative arthritis of the right foot, ankylosing spondylitis, history of fusion at L4-5 for
degenerative spondylolisthesis and osteoarthritis of the right thumb. Dr. Moore found 112
1

A.M.A., Guides, 5th ed. (2000).

2

degrees of flexion in the left knee and full extension. Appellant had tenderness in the right foot
at the base of her toe, 40 degrees of metatarsal phalangeal dorsiflexion and 20 degrees of plantar
flexion. Dr. Moore found that she had an antalgic gait with decreased weight-bearing on the left
side. He noted no abnormal neurological findings. Dr. Moore found that appellant had 27
percent impairment of the whole person in accordance with fifth edition of the A.M.A., Guides
based on impairments of the spine, thumb and lower extremities.
The district medical adviser reviewed Dr. Moore’s report on June 9, 2009 and found that
his report was not sufficient as he provided an impairment rating for appellant’s spine and
extremities in terms of the whole person. He noted that Dr. Moore did not properly evaluate
appellant’s impairment as he relied on gait impairment. The district medical adviser found that a
second opinion evaluation was necessary to determine appellant’s impairment rating based on
the Federal Employees’ Compensation Act and the sixth edition of the A.M.A., Guides.
Appellant submitted a report from Dr. Stanley W. Moss, M.D., dated May 5, 2009.
Dr. Moss noted performing her left knee surgery on June 12, 2008. He stated that appellant had
torn medial mensicus, chondrocalcionosi with calcifications, a cartilage fracture Grade IV with
some bare bone on both the medial femur and the medial tibia. Dr. Moss also found areas of
bone touch bone on the medial compartment or significant post-traumatic degenerative arthritis
related to the accepted meniscal tear. He noted that appellant walked with a limp, experienced
pain at night and intermittent swelling as well as pain with activity. Dr. Moss noted crepitation,
with full extension, 125 degrees of flexion. He found that appellant’s ligaments were intact with
no instability. Dr. Moss examined standing x-rays and found narrowing of the medical
compartment width by 50 percent.
The Office referred appellant for a second opinion evaluation with Dr. Paul C. Collins, a
Board-certified orthopedic surgeon, who completed a report on August 3, 2009. Dr. Collins
noted appellant’s history of injury and medical history. Appellant reported numbness in her left
leg, as well as muscle weakness, walking pain, stiffness and aching. Dr. Collins found 122
degrees of flexion in the right knee and 114 degrees in the left knee with full extension. He
found that appellant’s sensory and motor function in both lower extremities was intact and that
she did not have an impairment rating due to her accepted spinal conditions. Regarding
appellant’s right great toe, Dr. Collins found a Class 1 impairment of five percent.2 He found a
modifier of plus one.3
Concerning appellant’s knee, Dr. Collins found seven percent impairment4 based on a
Grade 1 modifier for physical examination adjustment.5 He evaluated appellant’s left thumb

2

Id. at 507, Table 16-2.

3

Id. at 519, Table 16-8.

4

Id. at 511, Table 16-3.

5

Id. at 517, Table 16-7.

3

noting the 25 percent reduction in range of motion from 5 to 70 degrees6 or 1 percent impairment
of the digit.
The district medical adviser reviewed this report on October 8, 2009 and found that
appellant had no impairment to the lower extremities due to motor or sensory losses due to her
accepted back injury. He also found degenerative joint disease of the right great toe was a
Class 1 Grade C impairment of five percent.7 Based on a Grade 1 mild functional impairment,
Grade 1 mild physical examination adjustment and no clinical studies. Applying the formula of
the sixth edition of the A.M.A., Guides,8 the district medical adviser found (1-1) + (1-1) = 0 for
five percent right lower extremity impairment related to the right toe degenerative disc disease.
The district medical adviser agreed with Dr. Collins’ application of the A.M.A., Guides
for the left knee as well, noting that a partial medial meniscectomy with cartilage debridement9 is
a seven percent left lower extremity impairment including net adjustment for functional history10
physical examination11 and clinical studies12 of (1-1) + (1-1) + (1-1) = 0. He also agreed with
Dr. Collins evaluation of appellant’s left thumb finding that the mild decrease in thumb range of
motion was a Class 1 impairment of one percent impairment of the digit13 which is a zero
impairment of the left upper extremity.14
By decision dated October 14, 2009, the Office granted appellant a schedule award for
five percent impairment of her right lower extremity and seven percent impairment of her left leg
lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Act15 and its implementing regulations16 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
for loss of loss of use, of scheduled members or functions of the body. The Act, however, does
not specify the manner in which the percentage loss of a member shall be determined. The
6

Id. at 468, Table 15-3.

7

Id. at 507, Table 16-2.

8

Id. at 521.

9

Id. at 511, Table 16-3.

10

Id. at 516, Table 16-6.

11

Id. at 517, Table 16-7.

12

Id. at 519, Table 16-8.

13

Id. at 393, Table 15-2 and 468, Table 15-30

14

Id. at 421, Table 15-12.

15

5 U.S.C. §§ 8101-8193, 8107.

16

20 C.F.R. § 10.404.

4

method used in making such determination is a matter which rests in the discretion of the Office.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. The Office
evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides. As of May 1, 2009, any decision regarding a schedule
award must be based on the sixth edition.17
The Act does not authorize the payment of schedule awards for the permanent
impairment of the whole person.18 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.19 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,20 no claimant is
entitled to such an award.21
Amendments to the Act, however, modified the schedule award provisions 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 provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.22
ANALYSIS
The Office accepted that appellant sustained employment-related injuries including
permanent aggravation of degenerative arthritis of the lumbar spine with spondylolisthesis at
L4-5, facet joint arthritis, osteoarthritis of the left knee, left thumb and right foot. Appellant
requested a schedule award on January 14, 2009 and submitted a report from her attending
physician, Dr. Moore. The Board finds, however, that Dr. Moore’s report was not sufficiently
detailed and well reasoned to establish appellant’s permanent impairment for schedule award
purposes. He did not apply the appropriate edition of the A.M.A., Guides, in this case the sixth
edition when evaluating appellant’s impairment. Furthermore, Dr. Moore found that appellant
had impairments of her spine and couched his impairment ratings in terms of the whole person.
17

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
18

W.D., 61 ECAB ___ (Docket No. 10-274, issued September 3, 2010); Ernest P. Govednick, 27 ECAB
77 (1975).
19

W.D., supra note 18; William Edwin Muir, 27 ECAB 579 (1976).

20

The Act itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

21

W.D., supra note 18. Timothy J. McGuire, 34 ECAB 189 (1982).

22

W.D., supra note 18. Rozella L. Skinner, 37 ECAB 398 (1986).

5

As noted above, the Act does not provide for impairment ratings of the back, spine or whole
person and appellant is not entitled to a schedule award for such ratings.
The Office referred appellant to Dr. Collins for a second opinion evaluation and he
properly applied the sixth edition of the A.M.A., Guides to appellant’s physical findings.
Dr. Collins noted that appellant had no motor or sensory impairment of the extremities due to her
accepted back condition and properly found that as this was the only way of determining
impairment due to these conditions, appellant was not entitled to a schedule award due to her
back condition.
As found by the district medical adviser, Dr. Collins then rated each of appellant’s
affected scheduled members in accordance with the protocol and formula of the sixth edition of
the A.M.A., Guides. This requires that the physician determine the class of diagnosis (CDX) and
apply the appropriate grade modifiers for functional history, (GMFH) physical examination
(GMPE) and clinical studies (GMCS) and apply the following formula (GMFH -CDX) + (GMPE
- CDX) + (GMCS – CDX) to reach the appropriate grade within the class of diagnosis.23
The A.M.A., Guides provide that arthritis of the right great toe is a Class 1 impairment
with ratings ranging from 1 to 13 percent.24 As found by Dr. Collins and demonstrated by the
district medical adviser appellant had no net adjustment to the default Grade C of five percent
and therefore properly received an impairment rating of five percent for this schedule member.
In regard to appellant’s left knee the A.M.A., Guides provide that a partial medial
meniscectomy with cartilage debridement is a Class 1 mild problem with a default grade of
seven.25 The district medical adviser again demonstrated the appropriate adjustments to the
formula to determine that the net adjustment was zero and that appellant was entitled to seven
percent impairment of her left lower extremity.
Finally, the district medical adviser and Dr. Collins appropriately applied the A.M.A.,
Guides and agreed on the extent of appellant’s left thumb impairment. The Board finds that the
weight of the medical evidence establishes that appellant had seven percent impairment of her
left lower extremity and five percent impairment of her right lower extremity for which she
received schedule awards.
As noted above neither this nor any other appellant is entitled to a schedule award for
impairment related solely to the spine or back. Therefore appellant’s arguments to the contrary
do not comport with the Act and she is not entitled to such an award.

23

A.M.A., Guides 521.

24

Id. at 507, Table 16-2.

25

Id. at 509, Table 16-3.

6

CONCLUSION
The Board finds that appellant has no more than seven percent impairment of her left
lower extremity and five percent impairment of her right lower extremity for which she received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the October 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
B.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS CANTEEN SERVICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0088
Issued: August 13, 2019

Case Submitted on the Record

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

JURISDICTION
On October 16, 2018 appellant, through counsel, filed a timely appeal from an August 20,
2018 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 August 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 16, 2017, due to
her refusal of suitable work pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On October 3, 2006 appellant, then a 58-year-old cashier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained injuries to her knees and right hand when she
slipped and fell on a wet floor caused by coffee machine drippings while in the performance of
duty. OWCP accepted the claim for contusion of right wrist and hand, contusion of bilateral knee
and lower leg, tear of the right medial meniscus, and sprain of other specified sites of the right
knee and leg.4 It authorized a January 16, 2007 right knee surgery and a December 13, 2007 left
knee surgery. Appellant was placed on the periodic compensation rolls effective July 8, 2007.
OWCP subsequently granted appellant a schedule award for 7 percent permanent impairment of
the left lower extremity and 26 percent permanent impairment of the right lower extremity. It later
authorized a February 16, 2015 right total knee replacement surgery and a June 1, 2015 left total
knee replacement surgery.
In a work capacity evaluation (Form OWCP-5c) dated September 9, 2016, Dr. John B.
Chiavetta, a Board-certified orthopedic surgeon, attached a November 3, 2015 form which
provided work restrictions of lifting, pushing, and pulling less than 25 pounds and no kneeling,
squatting, or using ladders greater than three feet.
On March 31, 2017 the employing establishment offered appellant a permanent light-duty
position, effective May 1, 2017, as a full-time food service worker. It also provided the option to
return to a new duty station closer to appellant’s current residence, in Fayetteville, Durham, or
Greenville, North Carolina. The position pursuant to Dr. Chiavetta did not include lifting, pulling,
or pushing over 25 pounds, required no climbing ladders greater than three feet, kneeling, or
squatting.
Appellant refused the job offer on April 20, 2017. She indicated in a separate narrative
statement that she was not declining the light-duty work assignment, but was respectfully declining
the reassignment to either of the duty stations offered because there was no public transportation
from her residential area to any of the offered duty stations, the duty stations were too far away,
and she drove an unreliable 2002 Volkswagen Jetta with over 155,000 miles and she only drove
her car for medical appointments, pharmaceutical, grocery, and basic shopping needs in her
immediate area, not to exceed 20 to 25 miles.
In a telephone call memorandum dated June 13, 2017, OWCP confirmed that appellant was
originally injured while working in Washington, DC, but had since voluntarily moved to North
Carolina. The employing establishment was attempting to locate a job as close to her local
commuting area as possible and the job offered on March 31, 2017 remained available to her.

4

Appellant has a previously accepted claim for right wrist sprain, bilateral knee contusions, and torn medial
meniscus of the left knee due to slipping on water/liquid leaking from a soda machine on April 22, 2005.

2

By letter dated June 15, 2017, OWCP notified appellant that the modified food service
worker position was suitable and afforded her 30 days to accept the position or provide a written
explanation for her refusal. It noted that the fact that she resided in a different geographic area
from where the injury occurred was not a valid reason for refusing a suitable offer of employment
because the employing establishment had confirmed that the closest suitable work available to her
current commuting area was located in Durham, North Carolina. It found that the evidence of
record did not support her inability to perform the modified position previously offered.
In response, counsel argued that the job was not suitable and submitted a note dated July 11,
2017 from Tiffany Stephens, a physician assistant, who indicated that appellant was capable of
limited-duty work with restrictions of limited driving.
On August 11, 2017 OWCP confirmed that the modified job offer remained available to
appellant.
In a letter dated August 11, 2017, OWCP notified appellant for a second time that the
modified food service worker position was suitable, and afforded her 15 days to accept and report
to work. It explained that it had considered each of the reasons that she provided for refusing to
accept the offered position and did not find them to be valid.
Appellant subsequently submitted an August 22, 2017 report from Dr. Chiavetta who
indicated that appellant had bilateral knee replacement surgery in 2015 and also a right hallux
valgus correction surgery. He noted that appellant had difficulty walking or standing for any
periods of time or performing any lifting. Dr. Chiavetta restricted her from lifting greater than 50
pounds at work.
By decision dated November 15, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 16, 2017, for her
refusal of suitable work. It found that the March 31, 2017 job offer was suitable based on
appellant’s restrictions as provided by Dr. Chiavetta on September 9, 2016 and as confirmed later
on August 22, 2017 because the duties of the position could be performed within the prescribed
restrictions.
On January 22, 2018 appellant, through counsel, requested reconsideration and argued that
driving 500 miles a week and then standing while performing work duties was medically
inappropriate given appellant’s persistent pain, age, and lack of overall mobility. He submitted
additional medical evidence in support of appellant’s refusal of suitable work, including a
December 18, 2017 report from Dr. Peter Trent, a Board-certified orthopedic surgeon, who
diagnosed pain in both knees. Dr. Trent opined that the job offer was not suitable because
appellant would have to drive 50 miles to work each way and it required prolonged standing and
walking in food service preparation.
By decision dated April 20, 2018, OWCP denied modification of its prior decision.
On June 9, 2018 appellant, through counsel, requested reconsideration and reiterated his
argument that the modified job offer was not suitable because the extended driving of 100 miles
daily would essentially exhaust appellant’s limited endurance and make her unfit for work. He
further submitted reports dated May 28 and 30, 2018 from Dr. Trent who reiterated his opinion

3

that the job was not suitable because the driving requirements constituted a burden, which
appellant could not reasonably accommodate.
By decision dated August 20, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, or
secured for him or her is not entitled to compensation.5 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.6 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7
To justify termination, OWCP must show that the work offered was suitable and that the
employee was informed of the consequences of her or his refusal to accept such employment.8
According to its procedures, a job offer must be in writing and contain a description of the duties
to be performed and the specific physical requirements of the position.9 20 C.F.R. § 10.51610
provides that an employee who refuses or neglects to work after suitable work has been offered or
secured for the employee has the burden of establishing that such refusal or failure to work was
reasonable or justified, and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation.11
An acceptable reason, if supported by medical evidence, for refusing an offer of suitable
work can be an inability to travel to work.12 OWCP’s procedures provide that the inability to
travel to work is an acceptable reason if the inability is because of residuals of the employment
injury.13 This holding is consistent with the Board’s holding that all impairments, whether work
related or not, must be considered in assessing the suitability of an offered position.14

5

5 U.S.C. § 8101 et seq.

6

M.W., Docket No. 17-1205 (issued April 26, 2018); Howard Y. Miyashiro, 51 ECAB 253 (1999).

7

P.C., Docket No. 18-0956 (issued February 8, 2019); H. Adrian Osborne, 48 ECAB 556 (1997).

8

M.W., supra note 6; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
10

20 C.F.R. § 10.516.

11

See P.C., supra note 7; Camillo R. DeArcangelis, 42 ECAB 941 (1991).

12
C.W., Docket No. 10-2074 (issued May 23, 2011); Mary E. Woodard, 57 ECAB 211 (2005); Glen L. Sinclair, 36
ECAB 664 (1985).
13

Supra note 9 at Chapter 2.814.5(a)(3) (June 2013). See also Donna M. Stroud, 51 ECAB 264 (2000).

14

Edward J. Stabell, 49 ECAB 566 (1998).

4

ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 16, 2017, due to
her refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted appellant’s claim for contusion of right wrist and hand, contusion of
bilateral knee and lower leg, tear of right medial meniscus, and sprain of other specified sites of
the right knee and leg and authorized knee surgeries on January 16 and December 13, 2007 and
total knee replacements on February 16 and June 1, 2015. Appellant has a previously accepted
claim for right wrist sprain, bilateral knee contusions, and torn medial meniscus of the left knee.
In a work capacity evaluation (Form OWCP-5c) dated September 9, 2016, Dr. Chiavetta
attached a November 3, 2015 report which provided work restrictions of lifting, pushing, and
pulling less than 25 pounds and no kneeling, squatting, or using ladders greater than three feet.
On March 31, 2017 the employing establishment offered appellant a full-time, limited-duty
food service worker position. The position did not include lifting, pulling, or pushing over 25
pounds, no climbing ladders greater than three feet, and no kneeling or squatting and thus was
within the physical limitations initially assessed by Dr. Chiavetta. The employing establishment
also provided appellant the option to return to a new duty station, closer to appellant’s residence
in North Carolina.
Appellant refused the position on April 20, 2017. She indicated in a separate narrative
statement that she was not declining the light-duty work assignment, but was respectfully declining
the reassignment to either of the duty stations offered as there was no public transportation, that
the commuting distance was excessive, and that she could not travel more than 20 to 25 miles from
her home in her car.
As noted above, the distance of travel to and from an employing establishment can be a
justifiable reason for refusing an offer of suitable employment. However, appellant voluntarily
moved to a home further away from the employing establishment.15 In this case, the employing
establishment attempted to accommodate appellant’s voluntary move from Washington, DC to
North Carolina. The difficulty in driving to the offered position is not dispositive as the commute
would have been by appellant’s choice, not a duty imposed by the employing establishment.16 The
Board finds that appellant’s stated intention that she planned to use public transportation to get to
work is irrelevant.17 The only relevant factors are that appellant remained on the rolls of the
employing establishment and she moved away from the employing establishment area after her
accepted October 3, 2006 employment injury. The Board has held that an employee’s move away
from the area in which the employing establishment is located is an unacceptable reason for
refusing to accept an offered position if the employee is still on the employing establishment’s
15

See R.L., Docket No. 16-1275 (issued September 27, 2017).

16

Alfredo Mata, Docket No. 98-1269 (issued May 19, 2000) (where the claimant voluntarily moved to a home
further away from the employing establishment and refused an offer of suitable work, the Board found that it was
irrelevant that he had contracted to buy a house prior to the date of injury and did not move until after the date of
injury).
17

Id.

5

rolls.18 OWCP, therefore, properly terminated her compensation for refusal to accept suitable
employment.
The Board further finds that appellant received proper notice prior to termination of her
compensation. Appellant was afforded 30 days to provide reasons for refusal of the position and
was later afforded an additional 15 days to accept the position.
Accordingly, the Board finds that OWCP complied with its procedural requirements in that
it advised appellant that the position was suitable, provided her with on opportunity to accept the
position or provide reasons for refusing the job offer, and gave her notice of the penalty provisions
of section 8106(c).19
After OWCP established that the offered work is suitable, the burden shifted to appellant
to show that her refusal of suitable work was reasonable or justified.20 The Board notes that, in
Dr. Chiavetta’s August 22, 2017 report, he indicated that appellant had also undergone a right
hallux valgus correction surgery and restricted her from lifting greater than 50 pounds at work.
This restriction also does not preclude appellant from performing the offered position as the
position did not include lifting, pulling, or pushing over 25 pounds. Further, Dr. Chiavetta did not
address why appellant could not perform the duties of the modified food service worker position.
Therefore, this evidence is insufficient to establish that the offered position was unsuitable.
Dr. Trent indicated that appellant experienced pain in her knees, but similarly, he failed to
address why she could not perform the duties of the modified food service worker position. For
this reason, this evidence is insufficient to support appellant’s refusal of suitable work.
The reports from Ms. Stephens does not constitute competent medical evidence because a
physician’s assistant is not a “physician” as defined under FECA.21 As such, this evidence is also
insufficient to meet appellant’s burden of proof.
Accordingly, after reviewing the evidence of record, the Board finds that the offered
modified food service worker position was medically and vocationally suitable and OWCP
complied with the procedural requirements of section 8106(c) of FECA. OWCP properly
terminated appellant’s monetary compensation due to her refusal of suitable work and that she did
not, thereafter, establish that her refusal of suitable work was justified.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

18

Id.

19

See J.J., Docket No. 14-0951 (issued September 2, 2014).

20

See C.E., Docket No. 09-0725 (issued November 5, 2009).

21

5 U.S.C. § 8101(2); 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).

6

CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
schedule award benefits, effective November 16, 2017, under 5 U.S.C. § 8106(c) for refusal of
suitable work.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
U.S. POSTAL SERVICE, PLEASANTBURG
STATION, Greenville, SC, Employer
__________________________________________

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

Docket No. 19-0758
Issued: March 16, 2021

Case Submitted on the Record

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

JURISDICTION
On February 22, 2019 appellant filed a timely appeal from November 14, 2018 and
January 25, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 29, 2018, as she no longer had residuals or
disability causally related to her accepted January 24, 2016 employment injury.

1

Appellant timely requested oral argument before the Board. By order dated July 17, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 19-0758 (issued July 17, 2020).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 27, 2016 appellant, then a 39-year-old rural carrier associate, ﬁled a traumatic
injury claim (Form CA-1) alleging that on January 24, 2016 she developed cervicalgia and pain in
her left shoulder when she fell in a parking lot covered with ice while in the performance of duty.
She stopped work on the date of injury. On February 26, 2016 OWCP accepted appellant’s claim
for strain of muscle, fascia, and tendon at the neck level and strain of an unspecified muscle, fascia,
and tendon at the left shoulder and upper arm level, initial encounter.
On July 1, 2016 appellant returned to full-time, full-duty work. She stopped work on
September 23, 2016. On October 7, 2016 appellant underwent authorized left shoulder
arthroscopic distal clavicle excision (Mumford procedure), debridement of labral tear, and
arthroscopic subacromial decompression of the left shoulder, which was performed by
Dr. Thomas E. Baumgarten, a Board-certified orthopedic surgeon. She returned to light-duty work
with restrictions on November 26, 2016 and worked in this capacity until November 30, 2016. On
December 1, 2016 appellant stopped work and has not returned.
In a July 17, 2017 medical report, Dr. Justin K. Hutcheson, an attending physician Boardcertified in anesthesiology and pain medicine, noted appellant’s continued complaints of pain in
the neck and left shoulder and arm. He discussed examination findings and advised that she had
not reached maximum medical improvement (MMI) from a pain standpoint until he pursued
disease-modifying treatment.
OWCP, in a letter dated August 24, 2017, requested that Dr. Baumgarten provide an
opinion as to whether appellant had residuals of her accepted January 24, 2016 employment injury
and authorized October 7, 2016 surgery, and whether she was capable of performing her date-ofinjury rural carrier associate position. No response was received.
On September 14, 2017 OWCP expanded the acceptance of appellant’s claim to include
impingement syndrome and labral tear of the left shoulder.
On September 20, 2017 OWCP referred appellant, together with a statement of accepted
facts, the medical record, and a list of questions, to Dr. John P. Evans, a Board-certified orthopedic
surgeon, for a second opinion examination to determine the extent and degree of remaining
disability due to her January 24, 2016 work-related injuries.
Dr. Evans, in an October 5, 2017 report, noted appellant’s history of injury on January 24,
2016 and that her claim was accepted for neck strain, and shoulder strain, impingement, and left
labral tear. He reviewed medical records and discussed findings on examination. Dr. Evans
provided impressions of nonspecific left shoulder pain post-acute injury or surgery without
consistent objective findings and nonspeciﬁc chronic or chronic recurring neck pain (also known
as chronic sprain/strain, symptomatic degenerative disc disease, facet joint pain, chronic whiplash,
etc.) with no objective findings. He advised that appellant was not totally disabled from work due
to her January 24, 2016 employment injury and authorized October 7, 2016 surgery. Dr. Evans
reasoned that treating providers had assessed her as being disabled from her rural carrier associate
position based on her subjective self-reported complaints and not on objective ﬁndings. He opined
that medical records did not indicate that appellant was a risk to herself with work activity or to

2

her coworkers. Dr. Evans indicated that the need to assess a patient as being unable to perform
usual and customary work activities should be based upon objective examination or clinical
abnormalities as opposed to self-response or subjective complaints. He noted that appellant’s
tolerance to pain and fatigue was a question that only she could answer, as her tolerances to pain
and fatigue were not scientiﬁcally measurable and could not be the basis for
restrictions/limitations. Dr. Evans maintained that there was no evidence to support her inability
to perform her regular unrestricted job as of the date of his examination. Additionally, he
maintained that appellant’s subjective complaints outweighed objective findings. Dr. Evans
explained that her activities of daily living (ADLs) and QuickDASH scores were unreliable as they
were not consistent with his physical examination. In an accompanying work capacity evaluation
dated October 5, 2017, he reiterated his opinion that appellant could perform her usual job with no
restrictions.
On January 8 and February 7, 2018 OWCP requested that Dr. Evans provide a
supplemental report providing whether appellant’s accepted conditions had resolved.3
In a letter dated October 5, 2017, Dr. Evans advised that, based on his examination,
appellant’s accepted January 24, 2016 work-related neck strain and left shoulder strain,
impingement syndrome, and labial tear had resolved.
By notice dated March 28, 2018, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits based on Dr. Evans’ opinion that the January 24,
2016 accepted conditions had ceased without residuals or disability. It afforded her 30 days to
submit additional evidence or argument challenging the proposed termination.
OWCP subsequently received an April 9, 2018 report by Dr. Hutcheson who indicated that
he had performed a facet joint injection at left C3-4, C4-5, and C5-6.
OWCP also received reports dated November 27, 2017 and April 24, 2018 signed by
Christina Garrett, a nurse practitioner, who examined appellant and provided assessments of
unchanged cervical spondylosis and left shoulder pain.
By decision dated June 28, 2018, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective June 29, 2018, finding that the medical evidence submitted was
insufficient to outweigh Dr. Evans’ opinion.
On July 6, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received reports and progress notes dated December 15, 2016 and
January 12, 17, and 19, 2017 signed by appellant’s physical therapist.
In an undated letter, Dr. Hutcheson noted that he had been treating appellant for neck pain
following a fall on ice which caused or aggravated her cervical stenosis and pain in her left
3
OWCP received a February 12, 2018 job offer from the employing establishment for a modified rural carrier
associate position. Appellant did not report to work.

3

shoulder and arm. He indicated that she had twice received facet injections which provided greater
than 50 percent relief. Dr. Hutcheson related that requests for additional treatment had been
denied. He maintained that, until such care was received, appellant had not reached MMI.
Dr. Hutcheson concluded that she would not reach MMI until she received the necessary medical
treatment to lessen her period of disability from her work-related injuries.
By decision dated November 14, 2018, an OWCP hearing representative affirmed in part
and set aside in part the June 28, 2018 decision. The hearing representative found that the medical
evidence submitted was insufficient to outweigh Dr. Evans’ opinion that appellant no longer had
employment-related disability. The hearing representative determined, however, that it was
premature for OWCP to terminate appellant’s medical benefits. The hearing representative
explained that while Dr. Evans reported no objective findings on examination, he did not
specifically address the need for continued medical treatment. The hearing representative
remanded the case to OWCP to obtain an opinion from Dr. Evans’ regarding appellant’s need for
continuing medical treatment due to her accepted employment conditions.
In a November 26, 2018 letter, OWCP again referred appellant to Dr. Evans for a second
opinion examination to determine whether she had continuing residuals and the need for medical
treatment due to her January 24, 2016 employment injury.
Dr. Evans, in a December 13, 2018 supplemental report, reiterated a history of the
January 24, 2016 employment injury. He also noted a history of appellant’s medical treatment and
reviewed medical records. Dr. Evans reported findings on examination and restated his prior
impressions of nonspecific left shoulder pain post-acute injury or surgery without consistent
objective findings and nonspeciﬁc chronic or chronic recurring neck pain (also known as chronic
sprain/strain, symptomatic degenerative disc disease, facet joint pain, chronic whiplash, etc.) with
no objective findings. He advised that the current diagnoses/conditions were not causally related
to the January 24, 2016 employment injury. Dr. Evans explained that appellant’s present
conditions/symptoms were subjective and not supported by objective findings that could relate her
symptoms to the accepted work injury. He further advised that the accepted work-related
conditions had resolved. Dr. Evans related that, as the accepted musculoskeletal conditions had
resolved, appellant’s prognosis was excellent. He concluded, that as there were no injury-related
residuals, no further medical treatment was needed.
By decision dated January 25, 2019, OWCP terminated appellant’s medical benefits
finding that Dr. Evans’ December 13, 2018 opinion was entitled to the weight of the medical
evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
4
See D.G., Docket No. 19-1259 (issued January 29, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.8
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 29, 2018, as she no longer had residuals or
disability causally related to her accepted January 24, 2016 employment injury.
OWCP referred appellant to Dr. Evans for a second-opinion evaluation to determine the
status of her accepted conditions and her work capacity. In his October 5, 2017 and December 13,
2018 reports, Dr. Evans described her January 24, 2016 employment injury and noted that her
claim was accepted for neck strain, and left shoulder strain, impingement, and labral tear. He
indicated that appellant’s physical examination revealed no objective findings of the accepted
conditions causally related to the accepted work injury. Dr. Evans further indicated that his
diagnoses of nonspecific left shoulder pain post-acute injury or surgery without consistent
objective findings and nonspeciﬁc chronic or chronic recurring neck pain (also known as chronic
sprain/strain, symptomatic degenerative disc disease, facet joint pain, chronic whiplash, etc.) with
no objective findings were not causally related to the January 24, 2016 employment injury or
authorized October 7, 2016 left shoulder surgery. He opined that the accepted work-related
conditions had resolved, that appellant could return to her rural carrier associate position without
restrictions, and that there was no need for further medical treatment. Dr. Evans explained that
treating providers who found that she was disabled from her rural carrier associate position based
their opinions on her subjective self-reported complaints and not on objective ﬁndings. Further,
he explained that the medical records did not indicate that appellant was a risk to herself with work
activity or to her coworkers. Dr. Evans maintained that an assessment of a patient’s inability to
perform usual and customary work activities should be based upon objective examination or
clinical abnormalities rather than self-response or subjective complaints. Additionally, he
maintained that appellant’s pain and fatigue tolerances were not scientiﬁcally measurable and they
could not be the basis for restrictions/limitations.

5

See D.G., id.; R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989);
Vivien L. Minor, 37 ECAB 541 (1986).
6

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
8
K.W., supra note 6; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.

5

Dr. Evans based his opinion on a proper factual and medical history and physical
examination findings and provided medical rationale for his opinion. He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related
to appellant’s January 24, 2016 employment injury. Accordingly, OWCP properly relied on
Dr. Evans’ second opinion report in terminating her wage-loss compensation and medical
benefits.9
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the weight afforded to Dr. Evans
as the second opinion physician or create a conflict in medical opinion.
Appellant submitted an undated letter from Dr. Hutcheson noting a history of the
January 24, 2016 employment injury. Dr. Hutcheson also noted that she had not reached MMI
because the facet injections she had twice received only provided greater than 50 percent relief
from her cervical stenosis and left shoulder and arm pain and requests for additional treatment had
been denied. He maintained that until such care was received appellant had not reached MMI.
Dr. Hutcheson concluded that she would not reach MMI until she received the necessary medical
treatment to lessen her period of disability from her work-related injuries. While he opined that
appellant had continuing employment-related disability, he failed to provide any medical rationale
to support his opinion. The Board has held that a medical report is of limited probative value on
a given medical issue if it contains a medical opinion which is unsupported by medical rationale.10
Dr. Hutcheson’s April 9, 2018 report indicated that he performed a facet joint injection at left C34, C4-5, and C5-6, but he did not address the issue of causation and this is of no probative value.11
Appellant also submitted reports and progress notes solely signed by Ms. Garrett, a nurse
practitioner, and appellant’s physical therapist. These reports do not constitute competent medical
evidence because neither nurse practitioners nor physical therapists are considered physicians as
defined under FECA.12 Consequently, their medical findings and/or opinions will not suffice for
purposes of establishing entitlement to compensation benefits.13
As the weight of the evidence establishes that appellant had no further employment-related
disability or need for medical treatment, the Board finds that OWCP properly terminated her wageloss compensation and medical benefits, effective June 29, 2018.

9
See K.W., id.; N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued
June 24, 2016).
10

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

11

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

12
5 U.S.C. § 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
13

B.B., Docket No. 18-0732 (issued March 11, 2020).

6

On appeal appellant contends that she has continuing residuals of her accepted January 24,
2016 employment-related injury and authorized October 7, 2016 left shoulder arthroscopic surgery
that required further medical treatment and that Dr. Evans’ opinion is not entitled to the weight of
the medical evidence. However, as explained above, Dr. Evans reviewed the medical record and
supported his conclusion with medical rationale. Thus, the Board finds that his reports represent
the weight of the evidence with regard to the termination of appellant’s wage-loss compensation
and medical benefits, effective June 29, 2018. As of the date of the decision on appeal, appellant
had not submitted evidence establishing continuing disability on or after the effective date of the
termination.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 29, 2018, as she no longer had residuals or
disability causally related to her accepted January 24, 2016 employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2019 and November 14, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Hartford, CT, Employer
__________________________________________

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)

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

Docket No. 10-1093
Issued: November 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2010 appellant filed a timely appeal from September 18, 2009 and
January 28, 2010 decisions of the Office of Workers’ Compensation Programs denying her
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury on July 22, 2009 while in the
performance of duty.
FACTUAL HISTORY
On July 24, 2009 appellant, then a 50-year-old clerk, filed a traumatic injury claim
alleging that on July 22, 2009 she injured her neck, back, arms and legs due to lifting heavy files
and twisting and bending. Sherrie Bell stated on the claim form that she saw appellant pull files
from drawers, put them in boxes and push carts filled with the files. The employing

establishment controverted appellant’s claim, advising that her light-duty assignment was
discontinued on July 21, 2009 due to lack of updated medical documentation.1
In a disability certificate and work capacity evaluation form dated July 31, 2009,
Dr. Robert A. Mohr, an attending physician specializing in orthopedics, advised that appellant
could return to work 45 days from that date. Appellant could perform light duty with permanent
restrictions of no bending, lifting, twisting, squatting, kneeling or climbing; and sitting, walking,
standing and reaching above the shoulder limited to 45 minutes and a weight limit of seven
pounds when pushing or pulling carts.
By letter dated August 7, 2009, the Office asked appellant for additional information,
including a detailed description as to how the July 22, 2009 injury occurred and medical
evidence containing a medical history, diagnosis and a rationalized explanation as to how the
diagnosed condition was causally related to the July 22, 2009 incident. No additional evidence
was received.
By decision dated September 18, 2009, the Office denied appellant’s claim on the
grounds that the evidence did not establish that she sustained an injury on July 22, 2009 while in
the performance of duty.
On September 24, 2009 appellant requested a hearing that was held on
September 30, 2009. She testified that as of July 22, 2009 she was still being treated for her
2007 back injury. Appellant was due to retire on social security disability approximately one
week after the hearing. She testified that on July 22, 2009 she lifted and moved 70 files
weighing 10 to 30 pounds. Appellant did not see Dr. Mohr until July 30, 2009 because an
appointment on that date had already been scheduled regarding her 2007 injury. She saw her
primary care physician, a Dr. Parsons, after July 22, 2009 and prior to July 30, 2009. The
hearing representative asked appellant to submit his report or office notes following the hearing.2
On December 29, 2009 the employing establishment stated that the files she moved on July 22,
2009 did not exceed 10 pounds in weight.
By decision dated January 28, 2010, the Office denied modification of the September 18,
2009 decision.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.3 Second, the employee must submit
1

Appellant sustained a work-related lumbar spasm on October 24, 2007.

2

No additional medical evidence was submitted.

3

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

medical evidence to establish that the employment incident caused a personal injury.4 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.5
ANALYSIS
Appellant established the first component of fact of injury. The Office accepted that she
lifted and moved files on July 22, 2009.
The second component of fact of injury is whether appellant sustained a medical
condition as a result of the July 22, 2009 incident. In a disability certificate and work capacity
evaluation form dated July 31, 2009, Dr. Mohr addressed work restrictions related to a 2007
employment injury. He did not obtain any history of the July 22, 2009 work incident.
Therefore, Dr. Mohr’s report does not establish that appellant sustained an injury on July 22,
2009 while in the performance of duty. Appellant testified at the hearing that she saw
Dr. Parsons, her primary care physician, for the July 22, 2009 injury but she failed to submit any
reports or notes from the physician.
The Office advised appellant of the medical evidence needed to establish her claim,
including a report with a medical history, diagnosis and a rationalized explanation as to how the
diagnosed condition was causally related to the July 22, 2009 incident. No such evidence was
submitted.
Appellant failed to meet her burden of proof to establish that she sustained an injury on
July 22, 2009 while in the performance of duty.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury on
July 22, 2009 while in the performance of duty.

4

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 28, 2010 and September 18, 2009 are affirmed.
Issued: November 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4