United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Beaumont, TX, Employer
__________________________________________

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

Docket No. 16-0358
Issued: July 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal of a November 30, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury on October 17, 2015, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its November 30, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

On appeal, appellant asserts that he called in sick on October 18, 2015, tried to return to
work on October 19, 2015, but had to leave immediately to go to the hospital. He submitted
additional documents on appeal.
FACTUAL HISTORY
On October 19, 2015 appellant, then a 28-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2015 he injured his left hand when
placing handcuffs on an inmate. His supervisor noted on the claim form that his injury occurred
in the performance of duty.
In support of his claim appellant submitted discharge instructions from the Medical
Center of Southeast Texas, which indicated that he was seen on October 19, 2015 by Dr. Jacob
Vigil, a physician Board-certified in emergency medicine, and was diagnosed with nondisplaced
fracture of proximal phalanx of left thumb. He was prescribed Tramadol, provided with general
discharge instructions for a fractured thumb, and referred to a surgeon for follow up. Lisa
Holland, a nurse practitioner, signed a work release form verifying that appellant was treated in
the emergency department and was able to return to work on October 20, 2015 with restrictions
of no use of the left hand for 30 days or until evaluated by an orthopedist.
In a November 19, 2015 work release form a physician with an unidentifiable signature,
indicated that appellant kept his appointment on that date, and that he may not return to work for
two weeks.
By letter dated October 21, 2015, OWCP informed appellant that further evidence,
including factual and medical evidence, was necessary to support his claim, and afforded him
30 days to submit this evidence. It found that the evidence was insufficient to establish that the
incident occurred as alleged, and that the medical evidence neither provided a diagnosis or
rationale relating a condition or injury to the incident. A questionnaire was provided which
asked appellant to describe where he was and what he was doing when the injury occurred.
Appellant did not submit any evidence within the 30-day time period.
By decision dated November 30, 2015, OWCP denied appellant’s claim because he had
not submitted sufficient evidence to establish that the event occurred as described.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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.3
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure which is alleged to have occurred.4 In
order to meet his or her burden of proof to establish the fact that he or she sustained an injury in
the performance of duty, an employee must submit sufficient evidence to establish that he or she
actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.5
The second component is whether the employment incident caused a traumatic injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.8 An employee has not met his or her burden of proof of establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.9 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.10 However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.11

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

M.H., 59 ECAB 461 (2008); George W. Glavis, 5 ECAB 363, 365 (1953).

9

S.P., 59 ECAB 184 (2007).

10

Barbara R. Middleton, 56 ECAB 634 (2005).

11

O.T., Docket No. 14-1803 (issued December 29, 2014); see also Wanda F. Davenport, 32 ECAB 552,
556 (1981).

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ANALYSIS
OWCP denied appellant’s claim because he failed to establish that the employment
incident occurred as alleged. However, the Board finds that he has met his burden of proof to
establish that the incident occurred. Appellant stated that on October 17, 2015 he injured his left
hand while forcibly placing handcuffs on an inmate. He has consistently described the
employment activity that caused the alleged injury. Appellant’s statement is consistent with his
behavior. The record contains hospital records indicating that appellant was evaluated on
October 19, 2015 and received treatment for an injury to his left thumb. Appellant also filed his
claim on October 19, 2015. His supervisor noted on the claim form that the incident occurred in
the performance of duty. The Board finds that appellant’s statements are consistent with the
surrounding facts and circumstances, including the fact that he sought medical treatment and
filed a claim form within two days of the alleged incident. Accordingly, appellant has
established that he experienced the employment incident on October 17, 2015.12
The Board finds, however, that the medical evidence of record is insufficient to establish
that appellant sustained a medical diagnosis causally related to the accepted employment
incident. Appellant submitted notes indicating that he received treatment on October 19, 2015 at
the Medical Center of Southeast Texas. However, the medical records with regard to this
hospital visit do not include any description of the employment incident or provide any opinion
indicating whether any injury was sustained as a result of the accepted employment incident.
The Board also notes that the hospital records from appellant’s October 19, 2015 visit do not
contain a physician’s signature. Although the records indicate that care was provided by
Dr. Vigil and Ms. Holland, a nurse practitioner, the only signature is that of Nurse Holland.
Medical evidence from a physician assistant or nurse practitioner does not constitute competent
medical evidence under FECA.13 The work release form of November 19, 2015 also lacks a
proper signature and does not address the circumstances of the employment incident. As noted,
reports lacking medical identification do not constitute probative medical evidence.14
An award of compensation may not be based on surmise, conjecture, or speculation.15 As
appellant did not establish that his medical condition was causally related to the accepted
employment incident, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

12

See G.W., Docket No. 13-1943 (issued July 29, 2014).

13

5 U.S.C. § 8102(2). See also V.C., Docket No. 16-0642 (issued April 19, 2016).

14

V.R., Docket No. 14-1695 (issued January 9, 2015).

15

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

CONCLUSION
The Board finds that appellant has established that the October 17, 2015 occurred as
alleged, but that he did not meet his burden of proof to establish that he sustained an
employment-related injury causally related to the October 17, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 30, 2015 is affirmed as modified.
Issued: July 15, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HOUSTON VETERANS ADMINISTRATION
MEDICAL CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 13-31
Issued: December 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2012 appellant filed a timely appeal from a June 18, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
December 18, 2011 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On December 29, 2009 appellant, then a 66-year-old pharmacist, sustained injury to both
upper extremities when she tripped and fell over a cart of medications. OWCP accepted the
1

5 U.S.C. § 8101 et seq.

claim for contusions of the right shoulder, upper arm and forearm and authorized an arthroscopic
rotator cuff repair. Appellant received appropriate compensation benefits.
In a June 14, 2011 report, Dr. Marc Labbe, an attending Board-certified orthopedic
surgeon, provided examination findings and work restrictions. He noted that appellant had full
active range of motion of the right shoulder, wrist and hand. There was numbness in the median
nerve distribution, but motor function was normal. Dr. Labbe released appellant to work at
sedentary duty, with no use of the right arm and no reaching overhead with the left arm.
On June 14, 2011 the employing establishment provided appellant a job offer of
transitional-duty assignment as a modified pharmacist. Appellant would perform sedentary
duties, such as consult with physicians, telecare veteran patients and act as a liason between a
veteran and his provider.2 The offer specified that the light-duty assignment would stay in effect
until she reached maximum medical improvement or until the release of updated restrictions that
would allow her to increase work duties. On June 15, 2011 appellant accepted the light-duty
assignment and returned to work. She stopped work again on July 20, 2011.
In a letter dated October 17, 2011, OWCP informed appellant that the duties and physical
requirements of the modified pharmacist position were found to be suitable to her capabilities. It
remained available to her and that she should return to the position or provide an explanation for
abandoning the position within 30 days. OWCP advised appellant that, if she failed to return to
the offered position or failed to demonstrate that the failure was justified, her compensation
would be terminated.
The record contains a memorandum of a November 17, 2011 telephone conversation
between appellant and OWCP. Appellant stated that she had to retire to care for her husband,
who had cancer. OWCP informed her that she was required to work in her light-duty position
for 60 days before retiring in order to avoid a charge of abandonment.
In a September 28, 2011 report, Dr. Labbe noted mild weakness in the right shoulder and
diagnosed rotator cuff tear of the right shoulder. On October 28, 2011 he noted mild weakness
in supraspinatas strength testing. Infraspinatus strength testing was normal. Active range of
motion in forward flexion was to about 160 degrees bilaterally. Dr. Labbe stated that appellant
should perform only sedentary work.
By letter dated November 21, 2011, OWCP informed appellant that she had not provided
acceptable reasons for abandoning the position. It allowed her 15 days to accept the position
prior to termination of benefits. Appellant was advised that no further reason for refusal would
be considered.
By decision dated December 8, 2011, OWCP terminated appellant’s entitlement to
monetary compensation benefits, effective December 18, 2011, finding that she had failed to
submit medical evidence sufficient to establish that she was disabled from performing the
limited-duty job offered.
2

The light-duty offer provided that appellant would not be required to reach above the shoulder or perform any
lifting or carrying, pushing, pulling, standing or walking.

2

On May 1, 2012 appellant requested reconsideration of the December 8, 2011 decision.
She denied that she had abandoned her light-duty position, noting that she had retired from her
job with the employing establishment. Appellant was unaware that she was required to work her
light-duty job for 60 days in order to be eligible for retirement under OWCP rules.
Appellant submitted a December 23, 2011 report from Dr. Todd E. Siff, a Board-certified
orthopedic surgeon, who stated that appellant had plateaued after right shoulder arthroscopic
rotator cuff repair and had reached maximum medical improvement. On examination of the
right shoulder, forward flexion was to 110 degrees. Internal rotation was to L4. Appellant had
no pain on cross body abduction. Dr. Siff opined that appellant had a 25 percent permanent
impairment of her right upper extremity under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). The record
also contains a report of an August 17, 2011 EMG/NCS.
By decision dated June 18, 2012, OWCP denied modification of its December 8, 2011
decision, finding that medical evidence established that appellant was able to perform the duties
of the modified-duty position and she did not offer sufficient justification for abandoning the job.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits. It has authority under section 8106(c)(2) of FECA to terminate
compensation for any partially disabled employee who refuses or neglects to work after suitable
work is offered. To justify termination, OWCP must show that the work offered was suitable,
that appellant was informed of the consequences of her refusal to accept such employment and
that she was allowed a reasonable period to accept or reject the position or submit evidence or
provide reasons why the position is not suitable.3
OWCP regulations provide factors to be considered in determining what constitutes
suitable work for a particular disabled employee, include the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.4 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.

3

See Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’d
on recon., 43 ECAB 818, 824 (1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.10 (July 1997) (The claims examiner must
make a finding of suitability, advise the claimant that the job is suitable and that refusal of it may result in
application of the penalty provision of 5 U.S.C. § 8106(c)(2), and allow the claimant 30 days to submit his or her
reasons for abandoning the job. If the claimant submits evidence and/or reasons for abandoning the job, the claims
examiner must carefully evaluate the claimant’s response and determine whether the claimant’s reasons for doing so
are valid).
4

Rebecca L. Eckert, 54 ECAB 183 (2002).

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OWCP procedures require that consideration be given to the kind of appointment in
determining whether an offered position is suitable. For example, a written offer of modified
duty will generally be considered unsuitable if the position offered is less than four hours a day
when a claimant is capable of working full time; if the position is temporary when the date-ofinjury position was permanent; or if the position is seasonal when the date-of injury position was
permanent, full time.5
Once OWCP has demonstrated that the job offered is suitable, the burden shifts to the
employee to show that her refusal to work is reasonable or justified.6
ANALYSIS
OWCP accepted appellant’s claim for contusions of the right shoulder, upper arm and
forearm. On June 15, 2011 appellant returned to work as a modified pharmacist. She stopped
working on July 20, 2011. When OWCP informed appellant that it found the modified position
to be suitable and that the job was still available, she refused to accept the offer of modified
assignment. The Board finds that OWCP improperly terminated her compensation benefits for
refusing an offer of suitable work.
The modified pharmacist position offered to appellant was identified as a “Transitional
Duty Assignment.” The offer specified that the position would stay in effect only until she
reached maximum medical improvement or until the release of updated restrictions that would
allow her to increase work duties. By definition, therefore, the offered position was temporary,
rather than permanent.
OWCP’s procedure manual provides that a temporary position will be considered
unsuitable unless the claimant was a temporary employee when injured and the temporary
position reasonably represents the claimant’s wage-earning capacity.7 OWCP found this
temporary position to be suitable. There is no evidence of record, however, that establishes that
appellant was employed in a temporary position at the time of her original injury. Therefore, the
position offered was not suitable.8
The Board finds that OWCP erred in terminating appellant’s compensation benefits on
the basis of her refusal of the temporary position. Therefore, OWCP failed to meet its burden of
proof to terminate appellant’s compensation benefits.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.10 (July 1997).
6

20 C.F.R. § 10.517. See Kathy E. Murray, 55 ECAB 288 (2004); see also Ronald M. Jones, supra note 3.

7

Supra note 5 at Chapter 2.814.4b(3) (December 1993)

8

See Michael J. Geiger, Docket No. 06-319 (issued May 16, 2006) (where appellant had been working in a
permanent position on the date of injury, the Board found the temporary modified position offered to appellant to be
unsuitable).

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CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation benefits,
effective December 18, 2011, on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 19, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1141
Issued: March 10, 2022

Case Submitted on the Record

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

On July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

2


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

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

Docket No. 10-2310
Issued: June 13, 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 September 10, 2010 appellant filed a timely appeal from a June 7, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs finding that she abandoned her
hearing request.1 Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit issue in this case.
ISSUE
The issue is whether the Office properly determined that appellant abandoned her request
for a hearing.

1

The last merit decision in this case was the January 27, 2010 Office decision which denied appellant’s claim.
An appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision.
See 20 C.F.R. §§ 501.2(c) and 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 23, 2009 appellant, then a 30-year-old letter carrier, filed a traumatic
injury claim alleging that on November 15, 2008 she injured her lower back and buttock when
she slipped and fell down four steps.
The employing establishment controverted her claim alleging that appellant did not report
a November 15, 2008 work injury until she was notified that she might be fired for not coming to
work.
Appellant provided various medical reports from Dr. Jennifer Taniguchi, a Boardcertified orthopedic surgeon.
In a December 12, 2009 signed personal statement, appellant explained that she did not
report her injury within 30 days because she was unaware of the 30-day time limitation. She also
did not think the injury was serious nor that the pain would become unbearable.
By decision dated January 27, 2010, the Office denied appellant’s claim on the grounds
that she did not submit sufficient factual evidence to establish that the employment incident
occurred as alleged.
On February 8, 2010 appellant submitted a request for an oral hearing and provided
additional medical evidence and a February 8, 2010 personal statement.
By letter dated April 6, 2010, the Office’s Branch of Hearings and Review notified
appellant that a telephone hearing was scheduled for May 11, 2010 at 11:00 a.m. eastern time. It
instructed her to call the provided toll-free number a few minutes before the hearing time and
enter in the pass code when prompted.
On April 6, 2010 appellant failed to call the toll-free number to participate in the
telephonic hearing.
In a decision dated June 7, 2010, the Branch of Hearings and Review found that appellant
abandoned her requested hearing. It found that she received written notification of the hearing
30 days in advance, but failed to appear. The Branch of Hearings and Review further determined
that nothing in the record established that appellant contacted or attempted to contact the Office
either prior to or subsequent to the scheduled hearing to explain her failure to participate. The
Office concluded that she abandoned her hearing request.
LEGAL PRECEDENT
Under the Act and its implementing regulations, a claimant who has received a final
adverse Office decision is entitled to receive a hearing upon written request within 30 days of the
date of the decision for which a hearing is sought.3 Unless otherwise directed, the Office hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

representative at least 30 days before the scheduled date.4 The Office has the burden of proving
that it mailed notice of a scheduled hearing to a claimant.5
According to the Office’s procedure manual, a hearing can be abandoned only under very
limited circumstances where all three of the following conditions are present: the claimant has
not requested a postponement; the claimant has failed to appear at a scheduled hearing; and the
claimant has failed to provide any notification for such failure within 10 days of the scheduled
date of the hearing. Under these circumstances, the Branch of Hearings and Review will issue a
formal decision finding that the claimant has abandoned her request for a hearing and return the
case to the district Office.6
ANALYSIS
The record establishes that, on April 6, 2010, in response to appellant’s timely request for
a hearing, the Branch of Hearings and Review mailed an appropriate notice of the scheduled
telephonic hearing to be held on May 11, 2010 at 11:00 a.m. eastern time. The hearing notice
was properly mailed to her address of record. The Board notes that the notice was sent more
than 30 days prior to the scheduled hearing date of May 11, 2010. The record establishes that
appellant did not call at the appointed time. In addition, she failed to request a postponement of
the hearing or explain her failure to appear at the hearing within 10 days of the scheduled
hearing. As all three conditions are met, the Board finds that appellant abandoned her request for
a hearing.7
On appeal, appellant contends that she did not attend the hearing because she
misunderstood the Office letter advising her to call the Office for her telephonic hearing. Her
explanation, however, was submitted with her appeal on September 10, 2010 which did not fall
within the 10-day period after the scheduled hearing before the Branch of Hearings and Review
and is insufficient to excuse her abandonment.8
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned her request
for a hearing.

4

20 C.F.R. § 10.617(b).

5

A.B., 58 ECAB 546 (2007); Michelle R. Littlejohn, 42 ECAB 463 (1991).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(e) (February 2011). See also G.J., 58 ECAB 651 (2007).
7

See M.B., Docket No. 10-1077 (issued March 17, 2011).

8

See J.S., Docket No. 10-117 (issued August 5, 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the June 7, 2010 nonmerit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plain City, OH, Employer
__________________________________________

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

Docket No. 10-665
Issued: October 14, 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 January 11, 2010 appellant filed a timely appeal from a December 14, 2009 merit
decision of the Office of Workers’ Compensation Programs. Under 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 low back condition in the performance of duty.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, then a 52-year-old city letter
carrier, filed an occupational disease claim for bulging discs in his low back in the L4-5 region
causally related to employment factors. He submitted reports from Dr. John Adams, a family
practitioner and Drs. Gregory Mavian and Theodore Jordan, osteopaths. In reports issued in
January and May 2007, Dr. Adams stated that appellant had pain and disc protrusion of the nerve
root based on a physical examination and a magnetic resonance imaging (MRI) scan. He advised
that appellant did not sustain a new injury as of December 26, 2006. On January 8, 2007

Dr. Mavian reviewed an MRI scan which noted degenerative changes at L4-5, marked
degeneration at L5-S1 with decreased disc spaces and some protrusions at L4-5 and L5-Sl. He
stated in a January 23, 2007 report that appellant was unsure as to whether his condition was
work related. Dr. Mavian was unable to state whether appellant’s condition was work related
given the short time of the encounter. In an April 2, 2007 treatment note, Dr. Jordan stated that
appellant worked as a mail carrier on December 24, 2006 through snowy and adverse conditions
and that he “apparently” injured his back while carrying mail and developed a disc bulge. He
opined that appellant’s condition was caused or aggravated by his employment activities and that
the mechanism of carrying mail was consistent with injury.
In a decision dated May 23, 2007, the Office denied appellant’s claim, finding that he did
not submit sufficient medical evidence to establish a causal relationship between his back
condition and factors of employment. In an April 8, 2008 decision, an Office hearing
representative affirmed the May 23, 2007 decision.
In a January 29, 2009 decision,1 the Board affirmed the Office’s April 8, 2008 decision.
The Board found that he failed to submit medical evidence sufficient to establish that his work
duties caused or aggravated his diagnosed lumbar condition. The facts of this case are set forth in
the Board’s January 29, 2009 decision and are herein incorporated by reference.
By letter dated May 3, 2009, appellant’s attorney requested reconsideration. In an
April 14, 2009 report, Dr. Richard M. Ward, Board-certified in orthopedic surgery, stated that,
based on the history, as related, appellant injured his back on December 22, 2006. He stated that
appellant specifically remembered that on December 22, 2006 he was bending and lifting heavier
than usual bundles of mail and when he developed pain in his low back which spread to his right
lower extremity. Appellant underwent an MRI scan on December 27, 2006, just five days later,
that showed a disc protrusion, mainly on the right side at the L4-5 level, consistent with rightsided radicular pain. Dr. Ward stated that the disc protrusion might have existed prior to the
December 22, 2006 injury; however, if it did, it was totally asymptomatic and was made
symptomatic by the December 22, 2006 incident, based on a medical probability.
In a decision dated December 14, 2009, the Office denied the claim, finding that
appellant failed to submit medical evidence sufficient to establish that his claimed lumbar
condition was related to factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition

1

Docket No. 08-1537 (issued January 29, 2009).

2

5 U.S.C. §§ 8101-8193.

2

for which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
It is not contested that appellant’s work duties as a letter carrier include lifting and
carrying mail on his route. He has failed to submit medical opinion containing a rationalized
explanation that relates his low back condition to the accepted factors of his employment. For
this reason, appellant has not established his claim for compensation benefits.
Appellant submitted the report from Dr. Ward, who related appellant’s assertion that he
injured his back while bending and lifting heavy bundles of mail on December 22, 2006.
Dr. Ward provided the diagnosis of disc protrusion at L4-5 as demonstrated by a December 27,
2006 MRI scan. He advised that if appellant had a disc protrusion prior to the December 22,
2006 injury it was totally asymptomatic and was made symptomatic by the December 22, 2006
injury, based on a medical probability. Dr. Ward did not provide a fully-rationalized medical
3

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

4

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

5

Id.

6

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

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opinion addressing how appellant’s lumbar condition.7 He did not describe appellant’s bending
or lifting activities on December 22, 2006 or how his work would be competent to cause the
diagnosed disc protrusions. Dr. Ward’s opinion is of limited probative value because it is
equivocal on causal relationship. He only noted the “medical probability” that appellant’s
condition was made symptomatic by the alleged December 22, 2006 work injury. The Board
notes that the history of injury appellant provided to Dr. Ward was not previously reported by
any other physician of record or by the employing establishment.8 This suggests that Dr. Ward
did not obtain an accurate history of injury. His description conflicts with that appellant
provided Dr. Jordan, who stated in an April 2, 2007 report that appellant had apparently injured his
back while carrying mail. Dr. Adams advised that appellant did not sustain a new injury as of
December 26, 2006. The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.9 Dr. Ward did not sufficiently describe
appellant’s job duties or explain the medical process through which such duties would have been
competent to cause the claimed condition. His report thus did not constitute adequate medical
evidence to establish that appellant’s claimed lower back condition was causally related to his
employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed lower back condition was causally related to his employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establish that his
claimed lower back condition was sustained in the performance of duty.

7

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

8

See Geraldine H. Johnson, 44 ECAB 745 (1993).

9

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

10

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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

Docket No. 16-1029
Issued: August 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 19, 2016 appellant, through counsel, filed a timely appeal from a January 8,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established an injury causally related to a November 6,
2013 employment incident.
FACTUAL HISTORY
On November 12, 2013 appellant, then a 57-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on November 6, 2013 she sustained an injury while assisting a patient.
She described the incident as transferring a patient from a wheelchair to a bed and feeling sudden
neck and shoulder pain, with numbness radiating into the upper extremities. The reverse side of
the claim form reported that appellant had been working light duty with a five-pound lifting
restriction. Appellant stopped working as of November 7, 2013.
By letter dated November 19, 2013, OWCP requested that appellant submit additional
evidence with respect to her claim for compensation. Appellant was afforded 30 days to submit
this evidence. An employing establishment program manager submitted a letter dated
November 20, 2013, asserting that she had been on light duty for several months prior to the
claimed injury. The program manager indicated that appellant had been counseled regarding
working within her restrictions and controverted the claim for compensation.
Appellant submitted a December 12, 2013 response describing the November 6, 2013
incident. She reported that the patient asked for help, and she held the wheelchair while the
patient was transferring to the bed. Appellant related that she felt sudden pain in her neck, back,
and shoulders, with radiating numbness into the upper extremities. She referenced her prior
work injury on October 1, 2012, when she had slipped and fallen on her right side.
Appellant submitted a Form CA-17 duty status report from Dr. Marjet Cordon, a Boardcertified internist, dated November 6, 2013. Dr. Cordon reported that appellant had injured her
neck while pushing a heavy patient in a wheelchair and diagnosed neck pain.
In a narrative report dated November 23, 2013, Dr. Paul Brisson, a Board-certified
orthopedic surgeon, provided a history that appellant sustained an injury to her cervical spine in a
work-related accident on November 6, 2013. He reported that she had cervical pain, radiating to
her lumbar spine and upper extremities, with numbness. Dr. Brisson provided results on
examination and indicated that cervical x-rays taken that date showed C5-6 spondylosis with
osteophyte formation. He opined that appellant had sustained an injury to her lumbar and
cervical spine in a work-related incident on November 6, 2013. Dr. Brisson also submitted a
Form CA-17 dated November 23, 2013, as well as a Form CA-20 attending physician’s form
report dated November 23, 2013. In the Form CA-20 report, he diagnosed cervical spondylosis
and checked a box marked “yes” that the condition was employment related.
The record contains a magnetic resonance imaging (MRI) scan report dated
November 27, 2013 from Dr. JoEllen Finkel, a radiologist. Dr. Finkel reported C5-6 and C6-7
disc bulges, with bilateral foraminal stenosis C5-6.

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By decision dated December 24, 2013, OWCP denied the claim for compensation. It
accepted that an employment incident occurred on November 6, 2013 as alleged, but found that
the medical evidence of record was insufficient to establish the claim for compensation.
In a letter dated January 23, 2014, appellant, through counsel, requested a hearing before
an OWCP hearing representative. She submitted a December 6, 2013 report from Dr. Kevin
Wright, a Board-certified orthopedic surgeon, who provided a history that she had developed
cervical pain and upper extremity numbness on November 6, 2013 while assisting a patient.
Dr. Wright provided results on examination and diagnosed cervical radiculopathy.
Dr. Brisson submitted a December 16, 2013 report with a history that appellant had a
work-related accident on November 6, 2013. He also noted that she had a previous October 1,
2012 injury when she had fallen and injured her right hand and elbow. Dr. Brisson indicated that
he had reviewed MRI scan and x-ray results and wrote that appellant had “sustained an injury to
her cervical spine when she was involved in a work-related accident on November 6, 2013.
[Appellant] has a cervical disc herniation and spondylosis of C5-6.” He indicated that appellant
needed physical therapy. Dr. Brisson provided the same assessment in a January 27, 2014
report.
In a February 6, 2014 report, Dr. Wright provided results on examination and diagnosed
right carpal tunnel syndrome, right thumb sprain/strain, and right elbow medial epicondylitis. He
completed a Form CA-17 report dated March 7, 2014, providing work restrictions. In a Form
CA-20 report dated March 7, 2014, Dr. Wright diagnosed hand pain, carpal tunnel syndrome,
and elbow enthesopathy. He checked a box marked “yes” that the conditions were employment
related.
By report dated April 5, 2014, Dr. Brisson indicated that appellant could return to work
with restrictions of no lifting, pushing, or pulling.
A hearing was held on July 8, 2014. By decision dated September 15, 2015, the hearing
representative affirmed the December 24, 2013 OWCP decision, finding that the medical
evidence of record was not of sufficient probative value to establish the claim.
On January 12, 2015 appellant, through counsel, requested reconsideration. She
submitted a November 17, 2014 report from Dr. Brisson, who reported that she had initially been
seen on November 23, 2013. Dr. Brisson noted that appellant was involved in a work-related
incident on November 6, 2013 while employed as a nurse. He reported that, when he saw her on
November 23, 2013, she complained of pain, right upper extremity numbness and tingling, and
she was last seen on April 5, 2014.
By decision dated March 25, 2015, OWCP reviewed the merits of the claim. It denied
modification, finding that the medical evidence of record was insufficient to establish the claim
for compensation.
In a letter received on October 15, 2015, appellant, through counsel, again requested
reconsideration. She submitted a January 23, 2015 report from Dr. Douglas Schwartz, an
osteopath. Dr. Schwartz provided a history that appellant was assisting in the transfer of a
patient from wheelchair to bed, and experienced an onset of pain in her neck, low back, and
3

shoulders, with bilateral radiating numbness. He reported that she currently complained of
persistent neck and low back pain, with stiffness and numbness into the arms. Dr. Schwartz
provided results on examination and diagnosed: cervical derangement with probable underlying
radiculopathy with desiccation and loss of height C5-6 disc with a broad-based disc protrusion,
eccentric to the left and a posterolateral osteophytic ridge and moderate high-grade bilateral
foraminal stenosis C5-6, disc bulge C6-7, lumbosacral derangement with probable underlying
radiculopathy and/or herniated disc, bilateral shoulder derangements with probable underlying
rotator cuff tears and/or impingement, and bilateral carpal tunnel syndrome/median neuropathy.
He recommended physical therapy and additional diagnostic testing. Dr. Schwartz opined, “It is
my professional medical opinion, within a reasonable degree of medical certainty, that there is a
causal relationship between the history of injury as described by the patient and the
aforementioned diagnosis.” He also wrote that he had “referenced” state workers’ compensation
medical guidelines.
By decision dated January 8, 2016, OWCP reviewed the case on its merits. It denied
modification of the prior decisions, again finding that the medical evidence of record was
insufficient to establish the claim for compensation. OWCP found that Dr. Schwartz did not
provide a rationalized medical opinion.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

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manifested and the medical rationale expressed in support of the physician’s opinion.7 Medical
rationale is a medically sound explanation for the opinion offered.8
ANALYSIS
In the present case, OWCP accepted that on November 6, 2013 appellant was assisting a
patient being transferred from a wheel chair to a bed. Appellant indicated that she felt pain in
her neck and back, with radiating numbness and tingling to her upper extremities.
The issue presented is whether the medical evidence submitted is sufficient to establish
the claim for compensation. As indicated above, the medical evidence must include a proper
factual and medical history, with an opinion on causal relationship between a diagnosed
condition and the November 6, 2013 incident. The opinion on causal relationship must be
supported with sound medical rationale. In reviewing the medical evidence of record, the Board
finds that there is no medical report that meets the above standard.
Dr. Cordon treated appellant on the date of injury, but provided only a Form CA-17
report that is of limited probative value. He offered a brief description of the employment
incident, and diagnosed neck pain without providing a definitive diagnosis or an opinion on
causal relationship.9
Dr. Brisson began treating appellant as of November 23, 2013, but his reports of record
are also of diminished probative value to the issue presented. He writes that she had a workrelated accident on November 6, 2013, without providing a more detailed description of the
actual incident. In his November 23, 2013 report, Dr. Brisson diagnosed C5-6 spondylosis, and
opines that appellant had an injury to her lumbar and cervical spine on November 6, 2013. He
did not offer any explanation or medical rationale in support of his opinion. The Board has held
that form reports checking a box marked “yes” to denote causal relationship, without more by
way of medical rationale, are of little probative value.10 In his December 16, 2013 report,
Dr. Brisson included a diagnosis of cervical disc herniation, but again provided no medical
rationale in support of causal relationship between the diagnosed conditions and the employment
incident. The November 17, 2014 report repeats the assertion that appellant had a work-related
accident, without providing additional explanation.11
The reports from Dr. Wright do not provide a rationalized medical opinion on causal
relationship. He diagnosed right carpal tunnel syndrome, right thumb sprain/strain, and right
7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
9

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. See G.B., Docket No. 15-1138 (issued July 13, 2016); A.D.,
58 ECAB 149 (2006).
10

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

11

Supra note 8.

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elbow medial epicondylitis. The only report with an opinion on causal relationship is the
March 7, 2014 Form CA-20 report checking a box marked “yes.” As discussed, this is of little
probative value on the issue.12
In his January 23, 2015 report, Dr. Schwartz provided a history of a November 6, 2013
employment incident. He provided a number of diagnoses, including cervical (radiculopathy,
foraminal stenosis, disc bulges), lumbar (derangement with probable radiculopathy and herniated
discs), shoulder (derangement with probable rotator cuff tears or impingement), and carpal
tunnel syndrome. As to causal relationship with employment, Dr. Schwartz opined that there
was causal relationship between the history of injury and the “aforementioned diagnosis.” It is
not clear whether he is referring to one of the above diagnoses or all of them. Moreover,
Dr. Schwartz provided no medical rationale explaining why he believes that a specific diagnosis
was causally related to the employment incident.13 He referenced state workers’ compensation
medical guidelines, without providing further explanation on the issue of causal relationship with
employment.
It is appellant’s burden of proof to submit medical evidence of sufficient probative value
to establish the claim for compensation. For the reasons discussed, she has not met her burden of
proof in this case.
On appeal, appellant’s counsel briefly argues that the evidence was not properly
analyzed. The Board has reviewed the evidence of record and finds that there is no rationalized
medical opinion establishing a diagnosed condition causally related to the November 6, 2013
employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury causally related to a
November 6, 2013 employment incident.

12

Id.

13

Supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2016 is affirmed.
Issued: August 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 17-1017
Issued: December 4, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 10, 2017 appellant, through counsel, filed a timely appeal from the January 31,
2017 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 the claim.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 record provided to the Board includes evidence received after OWCP issued its January 31, 2017 decision.
The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of his left upper extremity entitling him to a schedule award.
FACTUAL HISTORY
On September 6, 2008 appellant, then a 43-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that he injured his left shoulder on August 18, 2008
when the trailer door he was pulling down came off the track. He stopped work on
August 18, 2008. OWCP accepted the claim for a left shoulder strain. On December 12, 2008 it
expanded the claim to include cervical radiculopathy to the left shoulder. Appellant returned to
limited-duty, full-time employment in April 2009. He was released to full duty without
restrictions on May 20, 2009. Appellant performed regular duty until August 12, 2009, when he
stopped work due to increased shoulder symptoms. OWCP paid wage-loss compensation and
medical benefits.
On August 20, 2009 appellant filed an occupational disease claim (Form CA-2) alleging a
worsening of his cervical condition due to his work duties. OWCP assigned the claim File No.
xxxxxx881 and accepted an aggravation of cervical radiculopathy. File No. xxxxxx881 was
administratively combined with the current claim which was then designated as the master file.4
In a February 25, 2010 report, Dr. H. Harlan Bleecker, a Board-certified orthopedic
surgeon and second opinion physician, noted the history of the work injuries, reviewed the
medical records and statement of accepted facts, and presented examination findings. Due to a
concern about an inflammatory arthritis, he ordered an arthritis panel along with the
sedimentation rate.5 Dr. Bleecker also ordered new electrodiagnostic studies of both upper
extremities. He found that appellant was totally disabled. Dr. Bleecker responded that OWCP’s
questions would be answered after he reviewed the testing ordered.
In a July 15, 2010 report, Dr. Seymour Levine, a Board-certified rheumatologist and
internist serving as second opinion physician, opined that appellant had a widespread
inflammatory polyarthritis, most compatible with seronegative rheumatoid arthritis. He
reviewed appellant’s complete medical record and opined that the findings were not neurologic,
but rather rheumatologic in terms of widespread synovitis and was not connected to a work
injury. Dr. Levine indicated that the synovitis was present to such an extent that appellant had
significant weakness of the bilateral hands. He further opined that appellant was temporarily

4

File No. xxxxxx881 is in closed status.

5

Appellant underwent an arthritis panel on February 25, 2010, an electromyogram/nerve conduction velocity
(EMG/NCV) study of the bilateral upper extremities on March 16, 2010 and a magnetic resonance imaging (MRI)
scan of the cervical spine on March 26, 2010. In a March 31, 2010 report, Dr. Bleecker recommended that appellant
be seen for a rheumatological consultation as the testing indicated that there may be an inflammatory arthropathy
and a cervical radiculopathy. He responded that he could not answer OWCP’s questions until it was determined
whether appellant’s inflammatory process was related to his work. In an April 9, 2010 addendum report,
Dr. Bleecker again replied that it could not be determined that the accepted conditions were proper diagnoses until
appellant underwent a workup from a rheumatological standpoint.

2

totally disabled on a nonindustrial basis due to his rheumatoid arthritis. Dr. Levine further
opined that there were no limitations related to appellant’s left shoulder work injury.
In a July 21, 2010 addendum report, Dr. Bleecker opined that appellant recovered from
the accepted left shoulder strain. However, appellant still had residuals of the C6-7
radiculopathy. The remainder of his symptoms were secondary to the rheumatoid arthritis and
were not medially connected to the work injury.
Dr. Kenneth R. Sabbag, an orthopedic surgeon, provided impressions of cervical
radiculopathy, left shoulder strain/sprain, and nonindustrial rheumatoid arthritis. In an April 7,
2011 report, he noted that appellant was a candidate for cervical spine surgery, but that he did
not wish to pursue surgical care and was controlling his symptoms at the present time.
By decision dated May 11, 2011, OWCP terminated appellant’s medical benefits for the
left shoulder strain effective May 11, 2011. It found that the weight of the medical evidence
with Dr. Bleecker, a Board-certified orthopedic surgeon and second opinion physician, who
opined, in a July 21, 2010 addendum report, that appellant no longer had a left shoulder
condition. OWCP continued to authorize appellant’s medical benefits and disability for the
accepted employment-related cervical radiculopathy. It noted that Dr. Bleecker noted that, while
appellant had confirmed rheumatoid arthritis, he also continued to have residuals of his
employment-related cervical radiculopathy. OWCP also noted that Dr. Sabbag’s reports
indicated ongoing treatment for cervical radiculitis. Appellant did not appeal this decision.
Appellant retired on disability effective June 9, 2011.
On February 8, 2012 Dr. Sabbag indicated that appellant had reached maximum medical
improvement. He noted that appellant was unable to perform his usual job, but was able to work
in a sedentary position with permanent restrictions. Dr. Sabbag indicated that activity
exacerbated appellant’s underlying rheumatoid arthritis.
In an August 15, 2014 report, Dr. John L. Howard, a Board-certified orthopedic surgeon
and second opinion physician, provided an impression of status post strain of the left shoulder
and widespread polyarthritis, rheumatoid arthritis. Based on the history provided by appellant
and his review of the medical records and examination findings, Dr. Howard opined that there
were no remaining residuals of the accepted medical conditions. Rather, appellant’s symptoms
were due to his severely debilitating rheumatoid arthritis, which also rendered him totally
disabled for any work.
In an October 22, 2014 report, Dr. Sabbag indicated that he last saw appellant on
July 9, 2014. It was his opinion that because of his industrial conditions and nonindustrial
conditions, appellant was substantially incapacitated for employment. Dr. Sabbag noted that
appellant had rheumatoid arthritis and cervical radiculopathy. He indicated that the only way to
rule out whether appellant’s ongoing disability was due to radiculopathy or the arthritic issues
was to do perform an additional MRI scan of the cervical spine and conduct new EMG/NCV
studies.

3

By decision dated October 29, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective October 29, 2014.6 It found that the weight of the
medical evidence rested with Dr. John L. Howard, a Board-certified orthopedic surgeon and
second opinion physician, who opined in his August 15, 2014 report that there were no
remaining residuals of the accepted medical conditions.
Appellant requested a hearing before an OWCP hearing representative.
By decision dated April 16, 2015, the hearing representative affirmed the termination of
benefits. He noted that the October 22, 2014 report from Dr. Sabbag was insufficient to warrant
reinstatement of appellant’s benefits or for further development of the evidence. Appellant did
not appeal the April 16, 2016 hearing representative’s decision.
On March 11, 2016 appellant filed a claim for a schedule award (Form CA-7). No
evidence was provided with the schedule award claim. OWCP did not issue a development
letter.
By decision dated March 23, 2016, OWCP denied the claim for a schedule award. It
found that the weight of the medical evidence, as represented by Dr. Howard’s second opinion
report of August 14, 2015, established that appellant had no residuals of the accepted medical
conditions.
On April 8, 2016 appellant, through counsel, requested a telephone hearing before
OWCP’s Branch of Hearings and Review.
In an August 3, 2016 report, Dr. Mesfin Seyoum, a family practitioner, noted the history
of the August 18, 2008 employment injury, appellant’s history of rheumatoid arthritis, and
reviewed medical records which ended in 2010. He provided evaluation findings of the cervical
spine, left shoulder, and upper extremities. Dr. Seyoum opined that appellant had cervical
radiculopathy involving the left C5, C6, and C7 nerve roots and restricted range of left shoulder
motion and pain. Based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he opined that appellant had 24 percent
total left upper extremity impairment and 17 percent total left shoulder impairment due to the
accepted conditions of left-sided cervical radiculopathy and left shoulder sprain. For the left
upper extremity radiculopathy involving the left C5, C6, and C7 nerve roots, Dr. Seyoum
indicated that he used The Guides Newsletter Rating Spinal Nerve Extremity Impairment
(July/August 2009 edition) (The Guides Newsletter). For the total left C5 nerve root, he found
11 percent upper extremity impairment, which comprised of 3 percent sensory and 8 percent
motor impairments. For the total left C6 nerve root, Dr. Seyoum found eight percent upper
extremity impairment, which comprised of three percent sensory and five percent motor
impairment. For the total left C7 nerve root, he found seven percent upper extremity
impairment, which comprised of two percent sensory and five percent motor impairments. The
total left upper extremity radiculopathy impairment was 24 percent. Dr. Seyoum also found that
appellant had 17 percent total left shoulder impairment under the range of motion method. He
provided all his impairment calculations under the A.M.A., Guides.

6

File No. xxxxxx881 is in closed status. See infra note 4.

4

A telephonic hearing was held on November 16, 2016. Counsel argued that OWCP’s
decision was improper as it was obligated to develop the schedule award claim if appellant
submitted prima facie evidence of a permanent impairment after termination of benefits. He also
cited to Board precedent that the fact that appellant’s compensation was terminated does not
necessary preclude appellant from entitlement to a schedule award.7 The case record was held
open for 30 days to allow appellant to submit any additional medical evidence. Nothing further
was received.
By decision dated January 31, 2017, an OWCP hearing representative affirmed the
March 23, 2016 schedule award denial. The hearing representative found that Dr. Seyoum’s
August 3, 2016 report could not be used as prima facie evidence of permanent impairment as it
was not based on an accurate medical and factual history of the claims in question.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations9 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.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to rate permanent impairment.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.12 In
1960, amendments to FECA 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. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
7

See M.K., Docket No. 16-0243 (issued May 9, 2016).

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Pamela J. Darling, 49 ECAB 286 (1998).

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

5

alternative approach to rating spinal nerve impairments. OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides
Newsletter.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.15
OWCP procedures and Board precedent provide that termination of a claim for all
benefits due to a finding of no residuals of the accepted condition does not bar a subsequent
schedule award. Rather the claims examiner should consider the schedule award matter
separately from the termination of benefits.16 This is because a claimant may have an
employment-related condition that results in a permanent impairment under the A.M.A., Guides
without any disability for work or the need for continuing medical treatment.17 If a claimant
applies for a schedule award after termination and submits sufficient medical evidence reflecting
a permanent impairment as a result of the work-related injury exposure, the claims examiner
should develop the claim further, even if a finding of no residuals has previously been made.18
ANALYSIS
The Board finds that this case is not in posture for a decision.
On March 11, 2016 appellant filed a claim for a schedule award which was denied by
decision dated March 23, 2016. Appellant, through counsel, requested an oral hearing and
submitted an August 3, 2016 impairment rating report of Dr. Seyoum which found 17 percent
upper extremity permanent impairment. By decision dated January 31, 2017, OWCP’s hearing
representative affirmed the denial of the schedule award.
As noted above, if a claimant requests a schedule award after termination and submits
sufficient medical evidence of permanent impairment as a result of the work-related injury,
OWCP should develop the claim further, even if a finding of no residuals has previously been
made.19

14
See supra note 11 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4; see also E.P., Docket No. 16-1154 (issued October 26, 2016).
15

See supra note 11 at Chapter 2.808.6(f) (February 2013).

16

See B.K., 59 ECAB 228 (2007); Federal (FECA) Procedure Manual Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.11 (February 2013).
17

B.K., id.

18

Supra note 11 at Chapter 2.808.11(a) (February 2013).

19

Supra note 18.

6

The Board finds that OWCP did not properly develop the issue of permanent impairment
following the submission of the report of Dr. Seyoum. Pursuant to its procedures, OWCP should
have routed the case record, along with Dr. Seyoum’s August 3, 2016 report, to its medical
adviser for an opinion concerning the nature and percentage of impairment in accordance with
the A.M.A., Guides, with the medical adviser providing rationale for the percentage of
impairment specified.20 As this was not done, the case must be remanded to OWCP’s medical
adviser.
On remand, OWCP shall further develop the medical evidence of record and obtain an
opinion from a medical adviser or second opinion physician regarding the nature and extent, if
any, of appellant’s impairment for his accepted conditions. Following this and further
development deemed necessary, OWCP shall issue a de novo merit decision regarding
appellant’s schedule award claim.21
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 31, 2017 is set aside and the case is remanded for further
development consistent with this decision.
Issued: December 4, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
20

See supra note 11 at Chapter 2.808.6(f) (February 2013).

21

Due to the disposition of this case, counsel’s assertions on appeal will not be addressed.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
New Brunswick, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-194
Issued: October 5, 2011

Case Submitted on the Record

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

JURISDICTION
On November 2, 2010 appellant, through counsel, filed a timely appeal from a June 8,
2010 decision of the Office of Workers’ Compensation Programs (OWCP) affirming the denial
of her recurrence of disability claim. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and
nonmerit of this case.
ISSUE
The issue is whether appellant has established disability for the period September 27,
2008 through February 19, 2009 as a result of her accepted closed fracture of the fingers.
On appeal, appellant’s representative contends that OWCP erred in denying her claim of
disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 1, 2008 appellant, then a 39-year-old transitional postal carrier, filed a
traumatic injury claim alleging that on February 1, 2008 she injured two fingers on her right
hand in the performance of duty. OWCP accepted the claim for closed fracture of the phalanx or
phalanxes. Appellant stopped work on February 1, 2008 and returned to light-duty work on
February 16, 2008.
On May 6, 2009 appellant filed a claim for compensation (Form CA-7) for the period
September 27, 2008 through February 19, 2009. She submitted a February 5, 2009 attending
physician’s report from Dr. Humberto T. Perez, a treating physician specializing in family
medicine, who diagnosed right index finger nondisplaced facture mid shaft distal phalanx.
Dr. Perez noted May 19, 2008 as the last date of treatment. He checked “yes” to the question of
whether the condition was employment related. Under explanation, he stated that the condition
happened at work and had been aggravated by lack of any physical therapy.
On May 18, 2009 OWCP received a September 29, 2008 letter informing appellant that
she was being terminated from work due to adjustments of operational staff as a result of shifting
mail volumes.
In a letter dated May 22, 2009, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It advised her as to the medical and factual evidence
required. Appellant was given 30 days to provide additional information.
In an October 2, 2009 report, Dr. Perez reviewed a history of appellant’s injury, physical
findings at the time of the injury and treatment provided. He related that she received no
authorization during the month of February for physical therapy and that she returned to lightduty work on February 16, 2008. Appellant subsequently related having difficulty flexing her
right finger and a March 18, 2008 x-ray revealed a nondisplaced facture of the second finger
midshaft distal phalynx.
By decision dated December 17, 2009, OWCP denied appellant’s claim for wage-loss
compensation for the period September 29, 2008 through February 19, 2009.
In a January 6, 2010 letter, counsel requested an oral hearing before OWCP’s hearing
representative, which was held on April 7, 2010.
In an April 30, 2010 letter, Michael R. Rizzolo, postmaster, related that appellant had
been hired as a transitional employee. He indicated that her appointment expired on
September 28, 2008.
By decision dated June 8, 2010, OWCP’s hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation.

2

LEGAL PRECEDENT
The term disability as used in the FECA2 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.3 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.4 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.5 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 employee’s to self-certify their disability and entitlement to
compensation.6
An employee generally will not be considered to have experienced a compensable
recurrence of disability as defined in 20 C.F.R. § 10.5(x) merely because his or her employer has
eliminated the employee’s light-duty position in a reduction-in-force or some other form of
downsizing.7
ANALYSIS
In support of her claim for disability from September 29, 2008 to January 26, 2009,
appellant submitted reports from her treating physician, Dr. Perez. In a February 5, 2005
attending physician’s report, Dr. Perez diagnosed right index finger nondisplaced facture
midshaft distal phalanx and checked “yes” to the question of whether it was employment related.
In an October 2, 2009 report, he stated that following appellant’s return to work in
February 2008 she had difficulty flexing her right finger and a March 18, 2008 x-ray
interepretation revealed a nondisplaced fracture second finger midshaft distal phalynx. The
Board notes that Dr. Perez did not offer any opinion that appellant was disabled for work for the
claimed period. Dr. Perez did not support that appellant should be excused from work during
this time frame. These reports are of limited probative value. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.8 Dr. Perez did not address whether appellants accepted condition
caused disability for the period September 27, 2008 to February 19, 2009. He did not address
whether she was disabled due to her accepted condition for the period at issue.
2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

S.M., 58 ECAB 166 (2006); Paul E. Thams, 56 ECAB 503 (2005).

4

Paul E. Thams, supra note 3; W.D., Docket No. 09-658 (issued October 22, 2009).

5

R.C., 59 ECAB 546 (2008); Paul E. Thams, supra note 3.

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

See 20 C.F.R. § 10.509.

8

K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Appellant alleged that she was disabled from December 24, 2008 to January 26, 2009,
due to her accepted employment injury. The medical evidence of record does not establish that
her claimed disability was related to her accepted closed fracture of the phalanx or phalanxes.
No medical evidence specifically addressed how appellant’s claimed period of disability related
to her February 1, 2008 work injury.
The employing establishment confirmed that appellant was a transitional employee
whose appointment ended on September 27, 2008. The employing establishment explained that,
because the mail volume slowed down, she was separated. The employing establishment noted
that one other mail handler transitional employee was also released at the same time as appellant.
The employing establishment denied that appellant was let go because of her injury. As noted in
20 C.F.R. § 10.509, an employee generally will not be considered to have experienced a
compensable recurrence of disability as defined in 20 C.F.R. § 10.5(x) merely because his or her
employer has eliminated the employee’s light-duty position in a reduction-in-force or some other
form of downsizing.9 The Board finds that the evidence does not support that the end of
appellant’s term of work was in any way related to her work injury.
On appeal, counsel asserted that OWCP failed to properly apply precedent based on the
evidence. Appellant has not submitted any evidence refuting that she was hired as a transitional
employee whose term ended on September 27, 2008. As explained, she did not meet her burden
of proof in establishing her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she was disabled for the period
September 27, 2008 to February 19, 2009 as a result of her employment-related injuries.

9

See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2)(a)
(May 1997) (a recurrence of disability does not include a work stoppage caused by the termination of a temporary
employment).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2010 is affirmed.
Issued: October 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5