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

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

Docket No. 12-64
Issued: May 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 1, 2011 appellant filed a timely appeal from an April 7, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from January 29, 2010, the date of the most recent OWCP
merit decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 14, 2009 appellant, then a 55-year-old mail handler, filed a Form CA-2 for
occupational disease claim alleging that he sustained tendinitis in her lower extremity as a result
of boarding and dismounting motor vehicles and pushing mail containers. Dr. Merchery J.
Davis, an internist, diagnosed Achilles tendinitis in an August 5, 2009 medical form. Left ankle
x-rays obtained on August 10, 2009 by Dr. James W. Blechman, a Board-certified diagnostic
radiologist, were unremarkable. OWCP accepted the claim for left Achilles tendinitis.2
Appellant filed a Form CA-7 for disability compensation on October 21, 2009 for the
period August 14 to October 23, 2009 and submitted medical evidence. In a September 10, 2009
report, Dr. William F. Garrahan, a Board-certified orthopedic surgeon, diagnosed partial tear of
the Achilles tendon secondary to federal employment. He placed appellant on indefinite leave
from work.
An October 6, 2009 magnetic resonance imaging (MRI) scan obtained by Dr. Bara
Mouradi, a Board-certified diagnostic radiologist, exhibited severe noninsertional Achilles
tendinitis and thickening. The scan did not show a tear.
Dr. Garrahan observed that the ruptured Achilles tendon was improving in October 15,
2009 notes. He reiterated that appellant’s condition was “more than likely” due to his job duties,
namely “jumping in and out of trucks” and standing for long durations. Dr. Garrahan released
him to modified work beginning on October 24, 2009.
OWCP informed appellant in a November 10, 2009 letter that he was entitled to
wage-loss compensation for the period September 10 to October 23, 2009, but additional
evidence was needed to establish his claim for the period August 14 to September 9, 2009. It
gave him 30 days to submit a medical report from a qualified physician explaining how his
accepted condition resulted in his disability from August 14 to September 9, 2009.
In an October 28, 2009 duty status report, Dr. Garrahan diagnosed torn left Achilles
tendon and recommended a modified four-hour work schedule effective October 15, 2009. He
imposed restrictions on continuous lifting, standing, bending, stooping and simple grasping as
well as intermittent walking, twisting, pulling, pushing, fine manipulation and reaching above the
shoulder. Treatment notes dated November 18, 2009 from Dr. Garrahan related that appellant
had difficulty performing his job and excused him from work until December 9, 2009.
In December 9, 2009 follow-up notes, Dr. Garrahan placed appellant on a modified
four-hour work schedule for the period December 12, 2009 to January 1, 2010. He stated in a

2

On January 6, 2010 appellant filed a Form CA-2a for recurrence of disability occurring on October 31, 2009.
He subsequently filed a Form CA-7 for disability compensation on January 19, 2010 for the period October 31, 2009
to January 2, 2010. OWCP issued a January 28, 2010 decision accepting the recurrence claim and compensated
appellant accordingly.

2

January 20, 2010 note that appellant experienced residual symptoms but resumed full-time duty.
Dr. Garrahan opined that “[appellant] can safely go on and do his own work.”3
By decision dated January 29, 2010, OWCP denied appellant’s compensation claim,
finding that the medical evidence did not sufficiently establish disability for the period August 14
to September 9, 2009.
On January 11, 2011 appellant requested reconsideration, arguing that he should have
received compensation for the period August 14 to September 9, 2009 since OWCP paid his
medical expenses. In addition, he submitted new evidence. A physician assistant’s undated
emergency department note diagnosed torn Achilles tendon and advised that appellant was
unable to return to work until he received an orthopedic consultation. A January 20, 2010 work
status note from Dr. Garrahan checked a space indicating that he may continue full-time duty.
Appellant also provided copies of Dr. Garrahan’s September 22, 2009 report and December 9,
2009 work status note and various physical therapy records.
By decision dated April 7, 2011, OWCP denied appellant’s request for reconsideration on
the grounds that he did not present new evidence or legal contentions warranting further merit
review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.6
ANALYSIS
OWCP accepted appellant’s occupational disease claim for left Achilles tendinitis and
paid wage-loss compensation for the period September 10 to October 23, 2009, but denied
compensation for the period August 14 to September 9, 2009. On January 11, 2011 appellant
filed a reconsideration request and argued that he was entitled to compensation for this earlier
period because OWCP already paid his medical expenses. The Board has held, however, that
payment for medical expenses does not, in and of itself, constitute acceptance of a particular
condition or disability in the absence of evidence indicating that a particular condition or

3

Appellant also provided physical therapy records from November 23, 2009 to January 18, 2010.

4

5 U.S.C. § 8128(a).

5

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

6

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

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disability has been accepted as work related.7 Appellant’s legal contention, therefore, did not
contain an adequate legal premise having some reasonable color of validity.8
As part of his application for reconsideration, appellant furnished Dr. Garrahan’s
September 22, 2009 report and December 9, 2009 work status note as well as various physical
therapy records, evidence previously of record all of which were already included in the case
record. The submission of evidence that repeats or duplicates evidence already in the record
does not constitute a basis for reopening a case.9 Appellant also submitted a physician assistant’s
undated emergency department note and a January 20, 2010 work status note from Dr. Garrahan.
These documents, while new and not previously considered, were nonetheless immaterial
because neither addressed whether appellant’s left Achilles tendinitis rendered him disabled for
work from August 14 to September 9, 2009.10 The submission of evidence that does not address
the relevant issue involved does not constitute a basis for reopening a case.11 Since appellant
failed to meet one of the standards enumerated under section 8128(a) of FECA, he was not
entitled to a further merit review of his claim.
Appellant raises several contentions on appeal implicating the merits of his case. The
Board only has jurisdiction to consider whether OWCP properly denied his request for
reconsideration based on the evidence and argument that was before OWCP at the time the
April 7, 2011 decision was issued. As discussed above, appellant did not provide evidence or
argument satisfying any of the three regulatory criteria for reopening a claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

7

Gary L. Whitmore, 43 ECAB 441 (1992).

8

Charles A. Jackson, 53 ECAB 671 (2002) at n.14; Daniel O’Toole, 1 ECAB 107 (1948).

9

Edward W. Malaniak, 51 ECAB 279 (2000).

10

Furthermore, evidence from a physician’s assistant is not relevant as it cannot be considered as medical
evidence and the underlying issue in this case is medical in nature. See E.K., Docket No. 09-1827 (issued April 21,
2010) (lay individuals such as physicians’ assistants, nurses and physical therapists are not competent to render a
medical opinion under FECA); 5 U.S.C. § 8101(2).
11

D.K., 59 ECAB 141 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the April 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MARE ISLAND CLINIC, CA, Employer
__________________________________________

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

Docket No. 10-1834
Issued: May 6, 2011

Case Submitted on the Record

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

JURISDICTION
On July 2, 2010 appellant filed a timely appeal from an April 1, 2010 merit decision of
the Office of Workers’ Compensation Programs denying her emotional condition claim and a
May 18, 2010 nonmerit decision denying her request for reconsideration. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied her request to reopen her case
for further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 9, 2009 appellant, then a 40-year-old program support assistant, filed a
traumatic injury claim alleging that on November 5, 2009 she sustained difficulties with her
head, back, stomach, legs and hands in the performance of duty. She attributed her condition to
stress arising from a formal discussion held outside regarding a work change. Appellant related
that she had no representation and began feeling nauseated with a headache, hand numbness and
back pain. In a statement accompanying the claim, a coworker related that Maria A. MillerCarelock, a supervisor, took appellant outside. When appellant returned inside she was upset
and seemed ill.
On November 20, 2009 the Office requested that appellant submit factual and medical
information, including a detailed description of the employment incidents she believed caused
her condition. In an undated response, appellant related:
“My problems began as early as October 2005. My supervisor made me feel
isolated and constantly had other employees watching me. I felt persecuted and
always accused of whatever employees decided to tell her, and the situation was
always one sided. This caused me stress and anxiety, which led to depression,
since I was always the one singled-out. It was as if, being an employee in a detail
was a ticket to mistreat and never promote or even consider any sort of upward
mobility.”
Appellant related that, during the week of October 26, 2009, Ms. Miller-Carelock failed
to promote her and blamed her for the problems of others. She experienced stress due to
“humiliating and demeaning treatment.”2
In an October 16, 2009 report of contact, Ms. Miller-Carelock related that on that date
she asked to speak with appellant outside for privacy. She gave appellant a memorandum
informing her of a reassignment.3 Appellant refused to sign the memorandum and telephoned a
former union president. Later, she came to Ms. Miller-Carelock’s office and began “to speak
loudly using profanities.” Ms. Miller-Carelock requested that appellant be quiet but she refused.
She related that appellant continued to scream profanities.
On December 22, 2009 the employing establishment noted that appellant was alleging an
occupational disease rather than a traumatic injury. It controverted her claim and stated:
“[Appellant] is not in a career position which would guarantee a promotion if the
employee met specific requirements. Mobility is therefore the responsibility of
the employee, requiring the employee to be proactive in researching and applying
for jobs within [the employing establishment]. [Appellant] also stated the lack of
upward mobility and ‘being unjustly blamed for others’ problems caused chest
2

Appellant also submitted medical evidence in support of her claim.

3

An October 6, 2009 memorandum from the employing establishment notified appellant of her permanent
reassignment to a new position with the same position title and the same grade and salary.

2

tightness and trouble breathing.’ [She] has provided no evidence that other
employees were promoted while she was overlooked for promotion. [Appellant]
did not follow the proper grievance procedure to show there was a problem with
the supervisor.”
The employing establishment noted that the meeting between appellant had
Ms. Carelock-Miller occurred on October 23, 2009 rather than October 16, 2009. Ms. CarelockMiller asked appellant to meet outside because she “preferred to have talks with the supervisor
outside because that was the best way to keep conversations confidential.” The supervisor did
not have the meeting to single out appellant. After the meeting, appellant went to Ms. CarelockMiller’s office and used profanities.
By decision dated April 1, 2010, the Office denied appellant’s claim that she sustained an
emotional condition in the performance of duty. It found that she had not established any
compensable work factors.
On April 30, 2010 appellant requested reconsideration. By decision dated May 18, 2010,
the Office denied her request to reopen her case for further merit review.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon.,
42 ECAB 556 (1991).
7

See J.C., 58 ECAB 594 (2007); William H. Fortner, 49 ECAB 324 (1998).

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examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
ANALYSIS -- ISSUE 1
Appellant filed a traumatic injury claim; however, as she attributed her condition to work
factors occurring over the course of more than one work shift. The Office properly adjudicated
the claim as an occupational disease.11 Appellant alleged an emotional condition as a result of a
number of employment incidents and conditions. The Office denied her emotional condition
claim on the grounds that she did not establish any compensable employment factors. The Board
must therefore initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of the Act.
Appellant has not attributed her stress-related conditions of pain in her head, back,
stomach, legs and hands to the performance of her regular or specially assigned work duties,
under Cutler. Instead, she alleged that she became ill after her supervisor, Ms. Miller-Carelock,
spoke with her outside about a transfer to another position. Although the handling of transfers is
generally related to employment, it is an administrative function of the employer rather than a
duty of the employee and, absent error or abuse by the employing establishment, is not
compensable.12 Ms. Miller-Carelock related that she spoke with appellant about the transfer
outside so that they could have privacy. Appellant subsequently went to Ms. Miller-Carelock’s
office and, in a raised voice, used profanity. There is no evidence to establish error or abuse by
management in transferring her to another position. Appellant further has not shown any
improper conduct by Ms. Miller-Carelock in speaking with her outside about the new position.
Consequently, she has not established a compensable work factor.
8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

Dennis J. Balogh, 52 ECAB 232 (2001).

10

Id.

11

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
12

See L.C., 58 ECAB 493 (2007); Brian H. Derrick, 51 ECAB 417 (2000).

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Appellant argued that the employing establishment did not consider her for promotions.
Denials by an employing establishment of a request for a different job or promotion are not
compensable factors of employment under the Act, however, as they do not involve an
employee’s ability to perform her regular or specially assigned duties but rather constitute a
desire to work in a different position.13 Further, the employing establishment indicated that
appellant was not in a position with automatic promotion potential and that it was her
responsibility to seek out opportunities for advancement.
Appellant maintained that Ms. Miller-Carelock mistreated her, isolated her and believed
the accusations coworkers made against her. Harassment and discrimination by supervisors and
coworkers, if established as occurring and arising from the performance of work duties, can
constitute a compensable work factor.14 A claimant, however, must substantiate allegations of
harassment and discrimination with probative and reliable evidence.15 The employing
establishment denied that appellant was singled out for treatment. Appellant has not specifically
described any instances that she believed constituted harassment or discrimination but instead
generally alleged that she was treated differently without submitting any evidence corroborating
her allegations. Consequently, she has not established a compensable employment factor.16
On appeal, appellant submitted additional evidence, including a more detailed response to
the Office’s request for further factual information. The Board, however, has no jurisdiction to
review new evidence on appeal.17
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,18 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.19 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.20 When a claimant fails to meet one of the above

13

See C.S., 58 ECAB 137 (2006); Charles D. Edwards, 55 ECAB 258 (2004).

14

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

15

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

16

A claimant must establish a factual basis for his or her allegations of harassment or discrimination with
probative and reliable evidence. See Lori A. Facey, 55 ECAB 217 (2004).
17

See 20 C.F.R. § 501.2(c). Appellant may request reconsideration before the Office.

18

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
19

20 C.F.R. § 10.606(b)(2).

20

Id. at § 10.607(a).

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standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.21
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.22 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.23
ANALYSIS -- ISSUE 2
In a decision dated April 1, 2010, the Office denied appellant’s emotional condition
claim. On April 30, 2010 appellant requested reconsideration but did not submit any additional
evidence or raise any argument. She did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit new and relevant evidence not previously considered. As appellant did
not meet any of the necessary regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that appellant did not sustain an emotional condition in the performance
of duty. The Board further finds that the Office properly denied her request to reopen her case
for further review of the merits under section 8128(a).

21

Id. at § 10.608(b).

22

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

23

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the May 18 and April 1, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, WESTERN NEW
YORK PERFORMANCE CLUSTER,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 12-1773
Issued: February 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 22, 2012 appellant filed a timely appeal from the April 16, 2012 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) denying his schedule
award claim and the August 3, 2012 nonmerit decision of OWCP denying his request for a
hearing. 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 appellant met his burden of proof to establish entitlement to
schedule award compensation; and (2) whether OWCP properly denied appellant’s request for a
hearing under section 8124 of FECA.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on April 6, 2009 appellant, then a 54-year-old maintenance
specialist, sustained a medial meniscus tear of his left knee and fracture of his right fibular head
when he fell down from an elevator lift. On August 14, 2009 Dr. Robert J. Smolinski, an
attending Board-certified orthopedic surgeon, performed a partial medial meniscectomy of
appellant’s left knee and a medial femoral condyle chondroplasty. The procedures were
authorized by OWCP. Appellant received compensation for periods of disability.
On January 4, 2011 appellant filed a claim for schedule award due to his accepted
injuries.
In a June 28, 2011 letter, OWCP requested that appellant submit additional evidence in
support of his schedule award claim. In a July 12, 2011 report, Dr. Smolinski indicated that on
examination appellant’s left knee exhibited mild effusion with medial and lateral tenderness,
normal strength and stability and nearly full range of motion. He stated, without elaboration, that
appellant had 15 percent temporary impairment.
In an August 17, 2011 decision, OWCP denied appellant’s claim on the grounds that he
had not submitted sufficient medical evidence to establish that he had permanent impairment
entitling him to schedule award compensation. It noted that Dr. Smolinski’s July 12, 2011 report
did not contain a probative impairment rating.
On September 8, 2011 appellant was examined by both Dr. John R. West, an attending
Board-certified orthopedic surgeon, and Dr. Smolinski. In the resultant September 8, 2011
report, Dr. West’s signature appears after the physical examination findings and Dr. Smolinski
indicated that he agreed with the findings as presented. Dr. West noted that range of knee
motion was to 0 to 100 degrees on the left with guarding and 0 to 130 degrees on the right and
indicated that there was 5/5 strength in all muscle groups. Appellant exhibited mild pain with
patellar compression and sensation was intact through all the dermatomes. In the impairment
rating portion of the report, Dr. Smolinski stated:
“Pertinent findings follow: Flexion limited to 100 [to] 110 [degrees] on the left
knee with a mild effusion mild weakness and quadriceps atrophy. Scheduled loss
is 20 percent for loss of flexion and 18 percent for meniscus loss joint defect and
muscle atrophy. Total of 38 percent permanent loss of use of the left knee.
[Appellant] most likely will have progression of his disease and has a high
probability of requiring total joint replacement some point. At the present time he
can continue working as his comfort allows.”
In a December 15, 2011 decision, an OWCP hearing representative set aside OWCP’s
August 17, 2011 decision and remanded the case to OWCP for further development. She noted
that the September 8, 2011 report of Dr. West and Dr. Smolinski contained detailed examination
findings but found that it was necessary for the medical adviser to review the report and provide
a reasoned opinion on appellant’s impairment in accordance with the standards of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009).

2

On remand, OWCP asked Dr. Henry J. Magliato, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, to review the September 8, 2011 report of Dr. West and
Dr. Smolinski and provide an opinion on appellant’s impairment under the sixth edition of the
A.M.A., Guides.
In a February 9, 2012 report, Dr. Magliato discussed appellant’s work injuries, his surgery
history and the findings on diagnostic testing of record. He noted that, in his September 8, 2011
impairment rating, Dr. Smolinski indicated that appellant had a 38 percent loss of his left knee.
Dr. Magliato stated, “[Dr. Smolinski] does not indicate the [sixth edition of the A.M.A., Guides]
was used nor did he give any calculation that would lead one to believe that he did use some
edition of the [A.M.A., Guides]. [Dr. Smolinski] merely [stated] 20 percent loss of flexion and 18
percent for meniscal loss.” Dr. Magliato posited that the report was of no value for schedule award
purposes.
In an April 16, 2012 decision, OWCP denied appellant’s claim on the grounds that he had
not submitted sufficient medical evidence to establish that he had permanent impairment
entitling him to schedule award compensation. It indicated that the impairment rating of
Dr. Smolinski was of no probative value because it was not based on the standards of the sixth
edition of the A.M.A., Guides.
In a form postmarked as sent on June 5, 2012 and received by OWCP on June 7, 2012
appellant requested a hearing with an OWCP hearing representative.2
In an August 3, 2012 decision, OWCP denied appellant’s request for a hearing with an
OWCP hearing representative. It found that his request was untimely as it was not filed within
30 days of the issuance of OWCP’s April 16, 2012 merit decision. OWCP indicated that, in its
discretion, it had carefully considered appellant’s request and had determined that the issue of
the case could equally well be addressed by requesting reconsideration and submitting additional
medical evidence to establish entitlement to a schedule award.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

2

Appellant also submitted a May 15, 2012 report of Dr. Smolinski.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

3

appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
ANALYSIS -- ISSUE 1
OWCP accepted that on April 6, 2009 appellant sustained a medial meniscus tear of his
left knee and fracture of his right fibular head when he fell down from an elevator lift. On
August 14, 2009 Dr. Smolinski, an attending Board-certified orthopedic surgeon, performed a
partial medial meniscectomy of appellant’s left knee and a medial femoral condyle
chondroplasty. Appellant filed a claim for schedule award due to his accepted injuries and
OWCP determined that he did not submit sufficient medical evidence to establish entitlement to
schedule award compensation.
Appellant submitted a September 8, 2011 report. which contained examination findings
provided by Dr. Smolinski and Dr. West, an attending Board-certified orthopedic surgeon and an
impairment rating provided by Dr. Smolinski. In the impairment rating portion of the report,
Dr. Smolinski stated that appellant had flexion which was limited to 100 to 110 degrees in the
left knee as well as mild effusion mild weakness and quadriceps atrophy. He noted, “Scheduled
loss is 20 percent for loss of flexion and 18 percentfor meniscus loss joint defect and muscle
atrophy. Total of 38 percent permanent loss of use of the left knee.”
The Board finds, however, that the impairment rating opinion of Dr. Smolinski is of
limited probative value in that he failed to provide an explanation of how his assessment of
permanent impairment was derived in accordance with the standards adopted by OWCP and
approved by the Board as appropriate for evaluating schedule losses.7 Dr. Smolinski did not
provide any indication that he applied the standards of the sixth edition of the A.M.A., Guides
and the Board is not able to determine from his brief report that he applied such standards. He
merely indicated, without elaboration, that appellant had 20 percent impairment for loss of flexion
and 18 percent impairment for meniscus loss joint defect and muscle atrophy.8 In a February 9,
2012 report, Dr. Magliato, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser, properly found that Dr. Smolinski’s September 8, 2011 impairment rating did not show
that appellant had a permanent impairment entitling him to schedule award compensation.
On appeal, appellant discussed his difficulties in obtaining an impairment rating from his
attending physician in a timely manner and he submitted a copy of Dr. Smolinski’s May 15,

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
8

In a July 12, 2011 report, Dr. Smolinski indicated that appellant had a 15 percent temporary impairment, but he
did not provide a rating of permanent impairment for a scheduled body member.

4

2012 report. The Board cannot consider such evidence for the first time on appeal,9 but appellant
may wish to resubmit such evidence to OWCP.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”10 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made within the requisite 30 days.11
The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.12 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,13 when the request is made after the
30-day period for requesting a hearing14 and when the request is for a second hearing on the same
issue.15
ANALYSIS -- ISSUE 2
In the present case, appellant’s June 5, 2012 hearing request was made more than 30 days
after the date of issuance of OWCP’s prior decision dated April 16, 2012 and, thus, appellant was
not entitled to a hearing as a matter of right. Appellant requested a hearing before an OWCP
representative in a letter postmarked as sent on June 5, 2012 and received by OWCP on
June 7, 2012. Hence, OWCP was correct in stating in its August 3, 2012 decision that he was not
entitled to a hearing as a matter of right because his hearing request was not made within 30 days
of OWCP’s April 16, 2012 decision.
9

See 20 C.F.R. § 501.2(c).

10

5 U.S.C. § 8124(b)(1).

11

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

12

Henry Moreno, 39 ECAB 475, 482 (1988).

13

Rudolph Bermann, 26 ECAB 354, 360 (1975).

14

Herbert C. Holley, 33 ECAB 140, 142 (1981).

15

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

5

While OWCP also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right, OWCP, in its August 3, 2012 decision, properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and had
denied appellant’s hearing request on the basis that the issue in the case was medical and could be
resolved by submitting additional medical evidence to establish that he had permanent impairment
entitling him to a schedule award. The Board has held that as the only limitation on OWCP’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deduction from established facts.16 In the present case, the evidence of record does not
indicate that OWCP committed any act in connection with its denial of appellant’s hearing request
which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
schedule award compensation. The Board further finds that OWCP properly denied appellant’s
request for a hearing under section 8124 of FECA.
ORDER
IT IS HEREBY ORDERED THAT the August 3 and April 16, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 12, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
16

Daniel J. Perea, 42 ECAB 214, 221 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, RUGBY POST
OFFICE, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 21-0384
Issued: August 25, 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 January 24, 2021 appellant filed a timely appeal from an October 13, 2020 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 this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted August 28, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the October 13, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 4, 2020 appellant, then a 32-year-old truck driver, filed a traumatic injury
claim (Form CA-1) alleging that on August 28, 2020 he sustained a left rotator cuff tear, right
elbow contusion, and neck pain when exiting his delivery vehicle which was struck by another
vehicle while in the performance of duty. He stopped work on August 28, 2020.
In a development letter dated September 8, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
In response, appellant submitted a September 23, 2020 attending physician’s report (Form
CA-20) by Dr. David Kesselman, a chiropractor. Dr. Kesselman noted the August 28, 2020
employment incident and diagnosed cervical segmental dysfunction, cervical radiculitis, and
muscle spasm of the left shoulder. He checked a box marked “No” indicating that he did not
believe that the diagnosed conditions were caused by the August 28, 2020 employment incident.
Dr. Kesselman indicated that he provided spinal manipulation, trigger point therapy, manual
traction, massage, and chiropractic adjustment.
By decision dated October 13, 2020, OWCP accepted that the August 28, 2020
employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence containing a diagnosis in connection with the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
3

Supra note 1.

4

V.L., Docket No. 20-0884 (issued February 12, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,
Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
5

C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

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. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incidents identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2020 employment incident.
The record contains a September 23, 2000 Form CA-20 report from Dr. Kesselman, a
chiropractor, diagnosing cervical segmental dysfunction, cervical radiculitis, and muscle spasm of
the left shoulder. Chiropractors, however, are only considered physicians for purposes of FECA
if they diagnose spinal subluxation based upon x-ray evidence.10 Dr. Kesselman did not indicate
that he obtained or reviewed x-rays of the cervical spine. Therefore, his report is of no probative
value and is insufficient to establish the claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between a diagnosed medical condition and the accepted August 28, 2020
employment incident, the Board finds that he has not met his burden of proof to establish his 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.

7

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
Section 8101(2) of FECA provides that the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation
as demonstrated by x-ray to exist and subject to regulations by the Secretary. 5 U.S.C. § 8101(2); K.W., Docket No.
20-0230 (issued May 21, 2021); J.D., Docket No. 19-1953 (issued January 11, 2021); George E. Williams, 44 ECAB
530 (1993).
10

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 28, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 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

4


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

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

Docket No. 13-1591
Issued: January 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 26, 2013 appellant, through counsel, filed a timely appeal from an April 24,
2013 merit decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative who affirmed the termination of her compensation benefits. 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 appeal.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective October 9, 2012 as she no longer had any residuals or disability
causally related to her August 13, 2011 injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The record reflects that appellant has three accepted claims.2 On August 13, 2011
appellant, then a 44-year-old city carrier, sustained injury to her low back while delivering mail.
She stopped work on August 17, 2011. OWCP accepted appellant’s claim for a lumbar sprain
and she received wage-loss compensation.
A November 10, 2011 magnetic resonance imaging (MRI) scan by Dr. Alfonso Rivera, a
Board-certified diagnostic radiologist, noted that appellant sustained a lumbar strain and
complained of bilateral leg pain and numbness. The lumbar scan demonstrated a disc bulge with
a central articular fissure at L4-5 and a small, left paracentral disc protrusion at L5-S1.
In a December 5, 2011 attending physician’s report, Dr. Stephen Altic, a family
practitioner, treated appellant for a twisting injury on August 13, 2011 while working as a mail
carrier. He checked “yes” that her condition was caused or aggravated by the employment
activity. Appellant would be totally disabled from August 18, 2011 to February 28, 2012.
On December 6 and 7, 2011 Dr. Altic noted appellant’s complaint of ongoing lumbar
pain with bilateral radicular symptoms and periodic numbness and paresthesias. He stated that
the MRI scan revealed a central fissure at L4-5 and a leftward bulge at L5-S1 with abutment of
the left S1 nerve root consistent with the mechanism of injury. Upon examination, Dr. Altic
observed bilateral tenderness to palpation over the lumbar spine. Lumbar flexion was to 30
degrees and extension to 5 degrees. Straight leg raise testing was positive bilaterally at 70
degrees. Dr. Altic opined that the disc bulge, annular tear at L4-5 and disc protrusion of the L5S1 were a direct and proximate result of her injury.
OWCP referred appellant, together with a statement of accepted facts (SOAF) and the
medical record, to Dr. Manhal Ghanma, a Board-certified orthopedic surgeon, for a second
opinion examination. The SOAF described her work duties as a mail carrier and noted that her
claim was accepted for lumbar sprain as a result of the August 13, 2011 injury. It also listed
appellant’s previous accepted claims for a right shoulder condition and cervical, thoracic and
lumbar strains.
In a December 13, 2011 report, Dr. Ghanma reviewed a history of the August 13, 2011
injury and medical treatment, noting the statement of accepted facts . Examination of appellant’s
lumbar spine revealed no spinal listing or abnormal curvature. Left lateral lumbar bend was to
10 degrees and right lateral lumbar bend was to 30 degrees. Waddell’s sign was positive
bilaterally. Examination of appellant’s right shoulder revealed no abnormality of the AC joints,
subacromial bursa, biceps groove or head of humerus in either shoulder. Dr. Ghanma stated that
there were no objective findings on physical examination to support her subjective complaints of
2

OWCP accepted that on December 13, 2005 appellant sustained a right shoulder strain and contusion and
permanent aggravation of preexisting right acromioclavicular (AC) joint arthritis as a result of slipping on an icy
driveway at work. (File No. xxxxxx895). She was intermittently disabled from February 24, 2006 to July 20, 2011.
OWCP also accepted that on February 14, 2007 appellant sustained cervical, thoracic, and lumbosacral spine strains
due to slipping on ice and falling backward in the performance of duty. (File No. xxxxxx727). OWCP accepted that
on February 24, 2007 she sustained a right shoulder strain when a coworker snatched a tray of mail from her at
work. (File No. xxxxxx987).

2

pain or that she still had from any residuals of the August 13, 2011 lumbar strain. He noted that
a lumbar strain generally recovered within a period of a few days to several weeks at most and
would not take several months to heal. Dr. Ghanma concluded that there was no objective
evidence to support that appellant had any residuals of her previously accepted injuries. He
found that she was capable of returning to full duty as a letter carrier without restrictions. In a
December 19, 2011 work capacity evaluation form, Dr. Ghanma noted that appellant was
capable of performing her usual job full time with no restrictions.
On January 24, 2012 appellant was placed on the periodic rolls.
In a January 30, 2012 letter, the employing establishment requested that OWCP stop
appellant’s compensation based on the fact that she refused a previous job offer and did not
intend to return to work.
In a February 8, 2012 report, Dr. Robert H. Perkins, Board-certified in physical medicine
and rehabilitation, examined appellant for complaints of low back pain that developed in
August 2011. Appellant worked for the employing establishment and her job required lifting
heavy objects, bending and pushing. Dr. Perkins reviewed appellant’s treatment history and
noted that a November 10, 2011 MRI scan of the lumbar spine revealed a central annular fissure
at L4-5 with disc bulge in this region, a left disc protrusion at L5-S1 and mild facet arthropathy.
Upon examination, he observed a mildly restricted lumbar range of motion and tenderness about
the lumbar paraspinals bilaterally. Straight leg raise testing was negative bilaterally. Dr. Perkins
diagnosed a lumbar strain/sprain, disc protrusion at L5-S1 and lumbar annular tear at L4-5.
OWCP determined that a conflict in medical opinion arose between Dr. Altic, for
appellant, and Dr. Ghanma, the referral physician, as to whether she had ongoing residuals or
disability from her accepted employment injuries. On March 6, 2012 it referred her, together
with a statement of accepted facts and the medical record, to Dr. Ralph Rohner, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a March 7, 2012 report, Dr. Rohner stated that on August 13, 2011 appellant
experienced increased pain in her back as she performed her regular work duties. Appellant
related that there was no specific incident. Dr. Rohner reviewed the statement of accepted facts
and addressed the accepted injuries to her right shoulder with sprains/strains of the cervical,
thoracic and lumbar spine. He reported that a March 24, 2006 MRI scan demonstrated mild
degenerative changes of the right shoulder AC joint with no rotator cuff tear. A February 27,
2007 MRI scan revealed normal tendons of the rotator cuff and no evidence of any labral or
perilabral tears. A November 10, 2011 MRI scan of the lumbar spine demonstrated a disc bulge
at L4-5 with annular fissuring and a small, left paracentral disc protrusion abutting the left S1
nerve root. Dr. Rohner noted that the purpose of his examination was to evaluate the difference
in opinion between Dr. Altic and Dr. Ghanma, noting that neither of their reports was in the
material provided to him.
Upon examination, Dr. Rohner observed a healthy appearing individual in no acute
distress. Appellant’s gait was nonantalgic and she walked well on her toes. Dr. Rohner provided
range of motion findings of the cervical spine, with equal bilateral deep tendon reflexes. The
posterior cervical musculature was tender but nonspastic and an axial load did not increase pain.

3

The thoracic spine exhibited tenderness in the interscapular area, more on the right than left, but
without spasm. The sacroiliac joints were mildly tender bilaterally, but the sciatic notches were
nontender. The knee extension test was unremarkable while, in the reclining position, straight
leg raising was to 80 degrees bilaterally with low back pain. On Bragard’s test there was
evidence of plantar foot pain rather than pain along the sciatic nerve. Lumbar flexion was to 60
degrees and extension to 10 degrees. Patrick’s test was mildly positive bilaterally.
Dr. Rohner opined that appellant did not sustain a lumbar spine strain on
August 13, 2011. He noted that November 2011 MRI scan revealed degenerative disc disease of
L4-5 and L5-S1 and the time period was too short from August 13, 2011 to attribute the x-ray
findings to a sprain/strain. Dr. Rohner stated that appellant’s symptomatology was the normal
course of events for degenerative disc disease, not aggravated by her employment. He noted that
the problems with her lumbar spine were a result of appellant’s degenerative disc disease and not
any work-related injury. Dr. Rohner also opined that she no longer had residuals of her
previously accepted cervical or thoracic strains, but continued to experience residuals of her
accepted right shoulder condition. He advised that appellant was not capable of returning to her
letter carrier duties due to the pain to palpation and stress in the right shoulder rotator cuff.
Dr. Rohner advised that she avoid repetitive motion use of the shoulder or any extended
overhead use of the right shoulder. He also restricted appellant to lifting up to 30 pounds and to
follow proper lifting techniques.
In a March 29, 2012 report, Dr. Gregory Z. Mavian, a Board-certified neurosurgeon,
examined appellant for complaint of low back and radicular symptoms after the August 13, 2011
injury. He observed limitations and discomfort upon hyperextension, forward flexion and side
bending. Straight leg raise testing was not met with any guarding, grimacing or intense pain.
Dr. Mavian reviewed her records, including diagnostic images, and noted that a November 10,
2011 MRI scan revealed a broad-based disc bulge at L4-5 and L5-S1 without stenosis, foraminal
compression or disc herniation. He diagnosed back pain with lower extremity radicular
paresthesias and disc bulge at L4-5 and L5-S1.
On April 4, 2012 OWCP requested that Dr. Rohner clarify his medical opinion. It noted
that it had accepted appellant’s claim for an August 13, 2011 lumbar sprain, and thus, his opinion
on whether she continued to be disabled as a result of the August 13, 2011 employment injury
should be based on an accepted August 13, 2011 back injury.
In an April 4, 2012 report, Dr. Rohner stated that the diagnostic changes observed in
November 2011 were too advanced to be caused by a 90-day-old injury. He reiterated his
opinion that appellant no longer had residuals of the August 13, 2011 work injury and her current
findings were related to the aging phenomenon as seen on the MRI scan. Dr. Rohner noted that
there was no additional diagnosis caused, aggravated or accelerated by the August 13, 2011
employment injury. Appellant’s medical diagnosis was degenerative disc disease at L4-5 and
L5-S1, which was not aggravated or accelerated by the accepted mechanism of injury.
On April 5, 2012 Dr. Altic reported appellant’s complaint of bilateral radicular pain,
periodic numbness and paresthesias and noted that her attorney was seeking a rebuttal to the
impartial medical examination. Upon examination, he observed tenderness to palpation over the
lumbar region. Lumbar flexion was to 30 degrees and extension was to 5 degrees. Straight leg

4

raise testing was positive bilaterally at 70 degrees. Dr. Altic did not address the report or
findings by Dr. Rohner.
In an April 5, 2012 attending physician’s report, Dr. Altic noted that appellant sustained a
twisting injury on August 13, 2011. He checked “yes” that her condition was caused or
aggravated by the employment activity. Dr. Altic indicated that appellant was totally disabled
from August 18, 2011 to July 5, 2012.
On May 2, 2012 OWCP advised Dr. Rohner that he failed to provide an OWCP-5 work
capacity form specifying the restrictions based on appellant’s right shoulder condition. In a
May 3, 2012 work capacity evaluation form, Dr. Rohner noted that she was not capable of
performing her usual job but could work within specified restrictions on reaching or reaching
above the shoulder with the right arm and no repetitive motion.
On May 8, 2012 appellant contended that Dr. Altic had answered any questions relevant
to her present condition. She stated that he had better knowledge of her condition since he
treated her prior to and for the August 13, 2011 injury.
In a May 8, 2012 report, Dr. Altic stated that the November 10, 2011 MRI scan clearly
revealed an annular tear at L4-5 and disc protrusion of L5-S1. While appellant had previous low
back injuries before the August 13, 2011 incident, they were not as significant symptomatically
as the August 13, 2011 injury. Dr. Altic noted that her previous lumbar problems were not
terribly significant and that she did not have any MRI scans prior to 2011. He disagreed with
Dr. Ghanma’s opinion and stated that, since the injury occurred, appellant had significant
symptomatic and functional problems with her lumbar spine consistent with the L4-5 and L5-S1
disc pathologies. Dr. Altic also disagreed with Dr. Ghanma’s opinion that appellant had no
significant physical findings and noted impaired range of motion in the lumbar spine and positive
straight leg raise testing. He stated that the only reasonable medical conclusion for appellant’s
continuing lumbar and radicular complaints were the disc bulges and annular tear at L4-5 and
disc protrusions at L5-S1, which were explained by the 2011 injury.
On June 28, 2012 the employing establishment offered appellant a modified job
assignment as a letter carrier. Appellant refused the job offer.
In a July 12, 2012 report, Dr. Altic related that appellant continued to have low back pain
with bilateral lower extremity radicular paresthesias and numbness. As he dictated in his
December 7, 2010 report, appellant’s disc bulge and annular tear at L4-5 and disc protrusion at
L5-S1 were a direct and proximate result of the August 13, 2011 injury and was explained by the
mechanism of injury. He opined that appellant remained temporarily totally disabled from any
gainful means of employment.
On July 17, 2012 OWCP requested that Dr. Rohner clarify his opinion regarding whether
appellant’s work-related injuries had resolved and applicable work restrictions. It enclosed
copies of the reports of Dr. Altic and Dr. Ghanma.
In a July 17, 2012 response, Dr. Rohner stated that he reviewed reports of Dr. Altic and
Dr. Ghanma, noting that the difference of opinion was whether the bulging disc and annual tear
were related to the accepted injury. Upon review of the additional materials, he stated that his
5

opinion had not changed. Dr. Rohner noted that appellant had pain develop while performing
her work duties but there was no injury. According to the medical records, appellant had a
preexisting lumbar condition that became symptomatic at work and was a normal course of
events for the anatomic abnormalities of her back.
On July 25, 2012 OWCP issued a notice of proposed termination of appellant’s
compensation benefits based on the accepted August 13, 2011 lumbar strain. The weight of
medical opinion was found to be represented by Dr. Rohner, the impartial medical examiner.
OWCP noted that Dr. Rohner found residuals of the accepted right shoulder injury for which
work limitations were provided, but that the termination of benefits related to her accepted
lumbar strain.
In a September 27, 2012 attending physician’s report, Dr. Altic indicated that on
August 13, 2011 appellant sustained a low back injury. He noted positive straight leg raise
testing and diagnosed a back condition. Dr. Altic again checked “yes” that appellant’s condition
was caused or aggravated by the employment activity and she remained disabled.
In a decision dated October 9, 2012, OWCP terminated appellant’s compensation
benefits effective that. It found that Dr. Rohner’s impartial medical opinion represented the
weight of the medical evidence and established that the August 13, 2011 lumbar strain had
resolved.
On October 15, 2012 appellant’s counsel requested a hearing which was held on
February 6, 2013. He contended that Dr. Rohner’s impartial medical examination report was of
no evidentiary value because the physician refused to accept that appellant sustained a lumbar
strain on August 13, 2011. Appellant’s counsel stated that the termination decision was
premature because there was no determination as to other back conditions, contending that she
sustained a disc herniation as a result of the accepted injury. He also stated that Dr. Ghanma was
improperly selected as a second opinion examiner.
By decision dated April 24, 2013, an OWCP hearing representative affirmed the
October 9, 2012 decision. She found that the weight of the medical evidence rested with
Dr. Rohner, the impartial referee, and established that appellant’s accepted lumbar strain had
resolved without disability.
LEGAL PRECEDENT
Under FECA, once OWCP accepts a claim and pays compensation, it has the burden of
justifying termination or modification of an employee’s benefits.3 OWCP may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The burden of proof includes the necessity of furnishing rationalized medical

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).

6

opinion evidence based on a proper factual and medical background.5 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.6 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.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.8 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
OWCP accepted that on August 13, 2011 appellant sustained a lumbar strain in the
performance of duty. It previously accepted her claims for December 13, 2005 and February 24,
2007 right shoulder conditions and strains on February 14, 2007 to the cervical, thoracic and
lumbosacral spine. Appellant stopped work on August 17, 2011 and received compensation
benefits.
OWCP found that a conflict in medical opinion on continuing residuals and disability
related to the August 13, 2011 lumbar strain. Appellant’s attending physician, Dr. Altic,
determined that she had residuals and was totally disabled due to the work-related lumbar
condition. Dr. Ghanma, an OWCP referral physician, found that appellant no longer had
residuals of the lumbar strain or disability related to the accepted injury. OWCP referred
appellant to Dr. Rohner, selected as the impartial medical referee.
Dr. Rohner provided an accurate history of the August 13, 2011 employment injury and
the previously accepted injuries to her right shoulder and cervical, thoracic and lumbar spine. He
noted that appellant related experiencing pain in her low back region for several days prior to
August 13, 2011 and informed him that there was no specific incident. Appellant performed her
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).
8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

10

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

regular work duties but did not stumble or fall, lift any unusual weight or misjudge a step.
Dr. Rohner reviewed appellant’s treatment by Dr. Altic, who prescribed physical therapy with
some improvement of her symptoms. Dr. Rohner set forth findings on examination of her
cervical, thoracic and lumbar spines and her right shoulder. He reviewed the diagnostic studies,
noting that the November 10, 2011 MRI scan of the lumbar spine revealed a disc bulge at L4-5
with annular fissuring and a small left paracentral disc protrusion at the left S1 nerve root.
Dr. Rohner also reviewed x-rays obtained by Dr. Altic on November 9, 2011 that he found to be
unremarkable for bone, joint or disc pathology. Based on his review of the medical records,
physical examination and diagnostic studies, Dr. Rohner concluded that appellant did not sustain
a sprain/strain of the lumbar spine on August 13, 2011 nor could the findings from the
November 2011 diagnostic studies be attributed to a sprain or strain. He found that she had
degenerative disc disease of the lumbar spine at L4-5 and L5-S1 and that the MRI scan studies
demonstrated that her symptomatology was normal for the course of the disease process.
Dr. Rohner noted that appellant related performing her normal job duties and experienced pain
that day while walking. He found that she had residuals of her right shoulder condition, noting
pain to palpation with stressing of the rotator cuff and of the AC joint. Dr. Rohner found no
residuals related to the cervical or thoracic spine and stated that the current lumbar findings
related to the underlying degenerative disease. He provided physical limitations pertaining to the
right shoulder that were work related but advised that her lumbar restrictions were not work
related, but due to her degenerative disease. Appellant was found capable of returning to work
under the restrictions set forth.
The Board finds that the opinion of Dr. Rohner is thorough and based on an accurate
factual and medical background of the accepted claims. His opinion represents the special
weight of medical evidence accorded to that of an impartial medical referee. Dr. Rohner
reviewed the relevant medical records and diagnostic studies and provided an explanation for his
opinion that the August 13, 2011 lumbar sprain had resolved without disability.
Appellant submitted additional reports from Dr. Altic, who reiterated his opinion that the
August 13, 2011 injury caused the annular tear and disc protrusion as seen on the November 10,
2011 MRI scan. Dr. Altic stated that, while appellant had previous low back injuries prior to
August 13, 2011, they were not as significant. It was more reasonable, he stated, that her
functional problems arose after the accepted injury. Dr. Altic reiterated that appellant remained
totally disabled. The Board notes that Dr. Altic was on one side of the conflict in medical
opinion found in this case. His subsequent reports essentially repeated his stated findings and
conclusion. It is to be noted that OWCP accepted the August 13, 2011 injury for a lumbar strain,
not for the annular tear or disc protrusion revealed by subsequent diagnostic testing.
Dr. Rohner reviewed the reports of Dr. Altic and disagreed with the findings of the
attending physician. The impartial specialist noted that the medical records documented a
preexisting degenerative disease that became symptomatic at work. Dr. Rohner concluded that
appellant’s ongoing symptoms represented the normal course of the disease process based on the
anatomic abnormalities at L4-5 and L5-S1 which were not aggravated or accelerated by the
August 13, 2011 injury. The Board finds that OWCP properly relied on the opinion of the
medical referee to terminate appellant’s compensation benefits based on the accepted lumbar
sprain.

8

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits related to her accepted lumbar sprain.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: January 16, 2014
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

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

Docket No. 07-777
Issued: July 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 29, 2007 appellant filed a timely appeal from a December 11, 2006 decision
of the Office of Workers’ Compensation Programs which denied his claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on October 24, 2006 causally related to an attempted armed robbery.
FACTUAL HISTORY
On October 25, 2006 appellant, then a 54-year-old letter carrier, filed a Form CA-1,
traumatic injury claim, alleging that on October 24, 2006 he sustained psychological trauma by
an attempted armed robbery that occurred while he was delivering mail. He related that he was
held at gunpoint by an assailant who asked for his wallet.1 Appellant stopped work on
1

Appellant reported that the assailant, who has never been identified, ran away after appellant repeatedly told him
that he did not have a wallet.

October 26, 2006. In reports dated October 25 and 26, 2006, Dr. Shashikant J. Patel, a Boardcertified internist, advised that appellant was seen on October 25, 2006. He described a history
that appellant was held at gunpoint, diagnosed depression, anxiety and post-traumatic stress
disorder and opined that appellant could have long-term post-traumatic stress disorder from the
event. Dr. Patel checked a “yes” box, indicating that the diagnosed conditions were employment
related. He recommended counseling and advised that appellant should be off work until
November 2, 2006.
By letter dated October 31, 2006, the Office informed appellant of the evidence needed to
support his claim, which was to include a medical explanation from his physician as to how the
employment incident caused his condition.
Appellant submitted a police report dated October 24, 2006, which described the
attempted robbery. In a duty status report dated November 6, 2006, Dr. Patel reiterated his
diagnoses, stated that appellant’s anxiety was due to the October 24, 2006 injury and advised that
he could return to his regular duties.
In a decision dated December 11, 2006, the Office denied the claim. The Office found
that the medical evidence was insufficient to establish that appellant sustained an employment
injury from the accepted October 24, 2006 attempted robbery.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that 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. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

2

the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
To establish appellant’s claim that he sustained an emotional condition in the
performance of duty, he must submit the following: (1) medical evidence establishing that he
has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
ANALYSIS
On October 24, 2006 an attempted robbery occurred while appellant was in the
performance of his duties as a letter carrier. The Board finds that appellant has failed to meet his
burden of proof to establish an emotional condition causally related to the October 24, 2006
work incident. The only medical evidence of record are the reports dated October 25 and 26 and
November 6, 2006 of Dr. Patel, a Board-certified internist, who reported a history of injury
consistent with the attempted robbery at gunpoint on October 24, 2006 and diagnosed of
depression, anxiety and post-traumatic stress disorder which he related to the October 24, 2006
incident. However, Dr. Patel did not offer any medical narrative explaining how the conditions
he diagnosed were caused or contributed to by the accepted incident. A mere conclusion without
the necessary medical rationale explaining how and why the physician believes that the accepted
work incident resulted in a diagnosed condition is not sufficient to meet appellant’s burden of
proof.10 The record does not contain any opinion from a specialist in mental health such as a
5

Gary J. Watling, supra note 3.

6

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

7

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

8

Leslie C. Moore, supra note 6; Gary L. Fowler, 45 ECAB 365 (1994).

9

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

10

Albert C. Brown, 52 ECAB 152 (2000).

3

psychiatrist or clinical psychologist pertaining to the claimed emotional condition. The opinion
of a physician whose specialty is not in a germane area of medicine is of diminished weight.11
Dr. Patel merely checked a box on a form to indicate that the diagnosed conditions were
employment related. There is no evidence of record to indicate that appellant followed
Dr. Patel’s recommendation that he seek counseling. Due to the foregoing deficiencies,
appellant has not established that his diagnosed emotional condition was caused by the
October 24, 2006 employment incident.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that his
emotional condition was caused by the October 24, 2006 work incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 11, 2006 be affirmed.
Issued: July 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

11

Beverly A. Spencer, 55 ECAB 501 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Eugene, OR, Employer
__________________________________________

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

Docket No. 14-952
Issued: July 14, 2014

Case Submitted on the Record

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

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from a February 11, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending her
compensation benefits. 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 OWCP properly suspended appellant’s compensation for failing to submit a
Form CA-1032, as requested.
FACTUAL HISTORY
On September 10, 1997 appellant, then a 20-year-old recreation technician, filed a Form
CA-1 claim for benefits, alleging that on August 22, 1997 she was physically and sexually

1

5 U.S.C. § 8101 et seq.

assaulted. OWCP accepted the claim for rape and assault. It paid compensation benefits for
total disability beginning December 15, 1997
On January 2, 2014 OWCP informed appellant that federal regulations required her to
make an affidavit relative to any earnings or employment during the previous year and that a
Form CA-1032 was enclosed for that purpose. It notified her that she had to fully answer all
questions on the Form CA-1032 and return the statement within 30 days or her benefits would be
suspended. The letter was sent to appellant’s address of record. Appellant did not respond.
By decision dated February 11, 2014, OWCP suspended appellant’s compensation
benefits, effective February 12, 2014, for failing to submit the Form CA-1032, as requested. It
noted that if she completed and returned an enclosed copy of the Form CA-1032, her
compensation benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.2
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.3 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.4
ANALYSIS
On January 2, 2014 OWCP provided appellant with a Form CA-1032. It notified her that
federal regulations required her to complete the form and answer all questions concerning her
employment or earnings. OWCP properly notified her that if she did not completely answer all
questions and return the statement within 30 days, her benefits would be suspended. The record
reflects that OWCP’s letter was properly sent to appellant’s address of record.5 The record does
not establish that she responded prior to the February 11, 2014 OWCP decision. Based on the
evidence of record, the Board finds that OWCP properly suspended appellant’s compensation
benefits effective February 12, 2014 pursuant to 20 C.F.R. § 10.528.6
2

Id. at § 8106(b).

3

20 C.F.R. § 10.528.

4

Id.; see also id. at § 10.525.

5

See J.J., Docket No. 13-1067 (issued September 20, 2013).

6

J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997).

2

On appeal appellant contends that she did complete the Form CA-1032 due to a family
suicide, her physician’s retirement and her post-traumatic stress disorder. As noted, her benefits
will be retroactively reinstated when she completes and submits the Form CA-1032 to OWCP.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a Form CA-1032, as required.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2014
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 22-0009
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On October 3, 2021 appellant filed a timely appeal from a September 24, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 6, 2020 appellant, then a 51-year-old program specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed trigger finger of her left middle finger due
to factors of her federal employment. She explained that she was working at her computer and
experienced left hand and left middle finger pain. Appellant noted that she first became aware of
1

5 U.S.C. § 8101 et seq.

her condition on April 21, 2020 and realized its relation to her federal employment on
May 5, 2020. She stopped work on May 6, 2020.
In a May 8, 2020 development letter, OWCP informed appellant that it had not received
any evidence in support of her claim. It advised her of the type of factual and medical evidence
necessary and provided a questionnaire for her completion. In a separate development letter of
even date, OWCP requested that the employing establishment provide additional information
regarding appellant’s alleged injury, including comments from a knowledgeable supervisor
regarding the accuracy of her allegations and an explanation of any areas of disagreeme nt. It
afforded both parties 30 days to submit the requested evidence.
OWCP thereafter received a May 5, 2020 after visit summary by Dr. Nwamaka Olutola
Oluwato, a Board-certified family physician, who noted a diagnosis of left trigger finger and
hypertension, and referred appellant for an orthopedic evaluation. In a separate note of even date,
Dr. Oluwato recommended that she remain out of work through May 8, 2020.
Dr. Audrey K. Tsao, a Board-certified orthopedic surgeon, in a note dated May 5, 2020,
also diagnosed left middle trigger finger.
In a May 13, 2020 response to OWCP’s questionnaire, appellant indicated that she believed
that typing on a computer and using a keyboard for eight to nine hours per day for the past 20 years
had caused her symptoms. She noted that on April 21, 2020 she was working at her keyboard and
started feeling pain in her left hand and left middle finger, which progressively worsened each day.
Appellant related that she then woke up on May 5, 2020 and her left middle finger was stuck in
the bent position, so she massaged it until straightened out.
In a May 15, 2020 response to OWCP’s development letter, the employing establishment
noted that appellant used a keyboard for up to eight hours per day, which depended upon whether
she had to attend conference calls.
OWCP also received a position description for a program specialist with the employing
establishment.
By decision dated August 4, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her federal employment.
OWCP continued to receive evidence, including a July 24, 2020 after visit summary by
Allison M. Parver, a physician assistant, who noted that appellant received an injection.
In a note dated September 4, 2020, Dr. Oluwato indicated that appellant had received
medical treatment for a diagnosis of left middle trigger finger. She opined that this diagnosis can
be caused by repetitive use, such as frequent typing or repeated finger and thumb use.
On September 12, 2020 appellant requested reconsideration of OWCP’s August 4, 2020
decision.
By decision dated December 11, 2020, OWCP denied modification of its August 4, 2020
decision.

2

On January 25, 2021 appellant requested reconsideration of OWCP’s December 11, 2020
decision. In support of her request, she submitted a January 13, 2021 note by Dr. Tsao, who
diagnosed left middle trigger finger and opined that typing and keyboard work had aggravated her
condition and irritated her trigger finger. The note further indicated that appellant had undergone
two injections and may require surgery.
By decision dated September 24, 2021, OWCP denied modification of its December 11,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

A.K., Docket No. 21-0278 (issued July 12, 2021); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

M.V., Docket No. 18-0884 (issued December 28, 2018).

3

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In a January 13, 2021 medical note, Dr. Tsao diagnosed left middle trigger finger and
opined that typing and keyboard work had aggravated appellant’s condition and irritated her trigger
finger. Similarly, Dr. Oluwato, in her note dated September 4, 2020, opined that trigger finger can
be caused by repetitive use such as frequent typing or repeated finger and thumb use. While these
reports supported causal relationship, they did not a pathophysiological explanation of how the
accepted factors of federal employment were competent to cause the diagnosed condition . The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition was related to accepted
employment factors. 10 Consequently, the January 13, 2021 note by Dr. Tsao and September 4,
2020 note by Dr. Oluwato are insufficient to meet appellant’s burden of proof to establish her
claim.
In separate treatment notes dated May 5, 2020, Drs. Oluwato and Tsao diagnosed left
middle trigger finger, but did not provide an opinion on causation. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship. 11 Therefore, these notes are also insufficient
to establish appellant’s claim.
The remaining evidence of record consists of a July 24, 2020 after visit summary by
Ms. Parver, a physician assistant. Certain healthcare providers such as physician assistants,
physical therapists, nurse practitioners, and social workers are not considered “physician[s]” as
defined under FECA. 12 Consequently, their medical findings and/or opinions will not suffice for

9

Id.; Victor Woodhams, supra note 6.

10

J.W., Docket No. 18-0678 (issued March 3, 2020); G.R., Docket No. 19-0940 (issued December 20, 2019); D.L.,
Docket No. 19-0900 (issued October 28, 2019); see also V.T., Docket No. 18-0881 (issued November 19, 2018); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket
No. 08-2214 (issued May 6, 2009).
11

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

12

Section 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practic e as defined
by the applicable state law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2
Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical
therapists are not considered physicians under FECA).

4

purposes of establishing entitlement to FECA benefits. As such, this evidence is insufficient to
establish appellant’s claim.13
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s diagnosed medical conditions and the accepted factors of her federal employment, the
Board finds that appellant has not met her 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

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D.P., Docket No. 19-1295 (issued March 16, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); see
M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, id.

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