United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 19-1446
Issued: June 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 24, 2019 appellant, through counsel, filed a timely appeal from a June 6, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the June 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right leg condition
causally related to the accepted September 27, 2017 employment incident.
FACTUAL HISTORY
On October 4, 2017 appellant, then a 64-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 27, 2017 he sustained injury to his right leg while
in the performance of duty. He asserted that he pulled a muscle in his right leg due to lifting and
pulling a pallet of mail. Appellant stopped work on September 28, 2017.
On September 27, 2017 the employing establishment properly executed an authorization
for examination and/or treatment form (Form CA-16) which indicated that appellant was
authorized to receive treatment for his claimed right leg condition.
In a September 28, 2017 report, Dr. Brian Zwern, Board-certified in emergency medicine,
indicated that appellant visited the emergency department on September 27, 2017 and that he
advised appellant that he could return to work on October 9, 2017. Appellant also submitted
administrative documents from his September 27, 2017 emergency department visit.
In a development letter dated October 20, 2017, OWCP requested that appellant submit
additional evidence in support of his claim for a September 27, 2017 traumatic injury, including a
physician’s opinion supported by a medical explanation as to how the reported employment
incident caused or aggravated a medical condition. It provided a questionnaire for his completion
which posed questions regarding the reported September 27, 2017 employment incident. OWCP
afforded appellant 30 days to respond.
Appellant subsequently submitted an October 24, 2017 report from Dr. John J. Pellegrini,
a Board-certified internist, who indicated that appellant was totally incapacitated commencing
October 24, 2017 until an undetermined time due to a work-related injury sustained on
September 27, 2017. In a duty status report (Form CA-17) dated October 24, 2017, he listed the
date of injury as September 27, 2017 and provided a diagnosis “due to injury” of right calf muscle
tear. Dr. Pellegrini opined that appellant was unable to work as he could not stand and could only
engage in limited ambulation.
By decision dated December 1, 2017, OWCP accepted that the September 27, 2017
employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim
finding that he had not submitted any evidence “containing a medical diagnosis in connection
with the injury and/or event(s).” Consequently, OWCP found that appellant failed to establish
the medical component of fact of injury.
On December 22, 2017 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted an October 24, 2017 electromyogram and nerve conduction
velocity (EMG/NCV) study which revealed neuropathy and lumbar spine radiculopathy. An
October 28, 2017 x-ray of the right knee/tibia noted unremarkable findings.

2

In a report dated December 7, 2017, Dr. Russell H. Silver, a Board-certified physiatrist,
noted that appellant reported low back pain and detailed his performance of an ultrasoundguided lumbar injection. In an attending physician’s report (Form CA-20) dated December 7,
2017, he diagnosed right capsulitis and traumatic arthritis.4 Dr. Silver checked a box marked
“Yes” indicating that the diagnosed conditions were caused or aggravated by the reported
employment activity. He further noted that appellant was totally disabled from work
commencing September 27, 2017.
OWCP also received a report of a December 18, 2017 x-ray of the lumbar spine, which
revealed grade 1 anterolisthesis of L4, bilateral erosive facet degeneration, and mild right
convexity thoracolumbar.
In January 11 and 25, 2018 reports, Dr. Silver noted that he treated appellant’s low back
pain with ultrasound guided injections. In an attending physician’s report (Form CA-20) dated
January 11, 2018, he diagnosed capsulitis and traumatic arthritis. Dr. Silver checked a box
marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the
reported employment incident on September 27, 2017. He noted that appellant was disabled
from work.
In a January 25, 2018 report, Dr. Silver noted that appellant reported muscle spasm and
pain in the right leg and right knee. He indicated that appellant was undergoing physical therapy
and injections and would be off work from September 27, 2017 through February 15, 2018.
In a March 27, 2018 report, Dr. Silver noted appellant’s history of injury and referenced
his findings from examination on October 24, 2017 which had revealed ecchymosis and pain in
the right gastrocsoleus region and right knee. He indicated that appellant’s diagnosis of right
muscle tear in the right calf was a direct result of the accident that occurred on
September 27, 2017. Dr. Silver noted that appellant continued to be partially disabled and
required continuing physical therapy treatments and medication.5
A hearing was held on April 26, 2018, during which appellant testified regarding the
claimed September 27, 2017 employment injury and the medical treatment he received for his
right leg condition.
By decision dated July 9, 2018, OWCP’s hearing representative affirmed the
December 1, 2017 decision.
On March 15, 2019 appellant, through counsel, requested reconsideration of the July 9,
2018 decision. In support thereof, he submitted an undated report from Dr. Silver who noted
that while performing his work duties on September 27, 2017 appellant “sustained an injury to
his right calf and knee which has proven to be debilitating, preventing him from performing
work.” Appellant reported joining a steel handle to an industrial tool which aided him in pulling
a metal container weighing over 1,000 pounds and that he experienced pain and a pop in his
right leg. Dr. Silver noted that appellant was off work for one month with severe ecchymosis.

4

Dr. Silver listed the reported history of injury as injury to the right knee and leg.

5

Appellant also submitted administrative documents from visits to healthcare providers in 2017 and 2018.

3

He noted that appellant remained partially disabled and was unable to lift, push, or pull heavy
objects. Dr. Silver continued medications and physical therapy.
By decision dated June 6, 2019, OWCP denied modification of the July 9, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 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.7 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.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.11
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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right leg
condition causally related to the accepted September 27, 2017 employment incident.

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

11

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

12

J.L., Docket No. 18-1804 (issued April 12, 2019).

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Appellant submitted an October 24, 2017 report from Dr. Pellegrini who indicated that
appellant was totally incapacitated commencing October 24, 2017 until an undetermined time due
to a work-related injury sustained on September 27, 2017. In a March 27, 2018 report, Dr. Silver
noted that appellant was involved in a work-related injury on September 27, 2017 while pushing
a heavy object at work and that he reported he felt a sharp pull in the right lower extremity. He
indicated that appellant’s diagnosis of right muscle tear of the right calf was a direct result of the
accident that occurred on September 27, 2017. In an undated report, Dr. Silver noted that while
performing his work duties on September 27, 2017 appellant “sustained an injury to his right calf
and knee which has proven to be debilitating, preventing him from performing work.” He noted
that appellant reported joining a steel handle to an industrial tool which aided him in pulling a
metal container weighing over 1,000 pounds and that he was off work for one month with severe
ecchymosis. Although Dr. Pellegrini and Dr. Silver provided opinions that appellant sustained
injury on September 27, 2017 due to performing work duties, neither physician provided a
rationalized medical opinion explaining how the diagnosed medical conditions were causally
related to the accepted September 27, 2017 employment incident. They did not explain the
medical mechanics of how the accepted September 27, 2017 employment incident, i.e., lifting and
pulling a pallet of mail, was competent to cause the diagnosed conditions. The Board has held that
a report is of limited probative value regarding causal relationship if it does not contain medical
rationale explaining how an employment activity could have caused or aggravated a medical
condition.13 Therefore, these reports of Dr. Pellegrini and Dr. Silver are insufficient to establish
appellant’s claim.
Appellant submitted Form CA-20 attending physician’s reports dated December 7, 2017
and January 11, 2018 from Dr. Silver who listed the date of injury as September 27, 2017 and
diagnosed right capsulitis and traumatic arthritis. Dr. Silver checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by the reported employment
activity. However, these reports are of limited probative value with respect to appellant’s claim
for a September 27, 2017 traumatic injury. Appellant’s burden of proof includes the necessity of
furnishing an affirmative opinion from a physician who supports his or her conclusion with sound
medical reasoning.14 Dr. Silver provided no rationale for his opinion on causal relationship. The
Board has held that when a physician’s opinion on causal relationship consists only of checking
“Yes” to a form question, without more by the way of medical rationale, that opinion is of limited
probative value and is insufficient to establish causal relationship.15 As such, these reports of
Dr. Silver are insufficient to meet appellant’s burden of proof.
Appellant also submitted a September 28, 2017 report from Dr. Zwern who indicated that
appellant visited the emergency department on September 27, 2017 and advised that he could
return to work on October 9, 2017. In a Form CA-17 duty status report dated October 24, 2017,
Dr. Pellegrini listed a date of injury of September 27, 2017 and provided a diagnosis due to injury
of right calf muscle tear. In reports dated December 7, 2017, and January 11 and 25, 2018,
Dr. Silver noted that he treated appellant’s low back pain with ultrasound-guided injections. In
another January 25, 2018 report, he indicated that appellant would be off work from September 27,
2017 through February 15, 2018. However, in these reports, Dr. Zwern, Dr. Pellegrini, and
13

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M. Jones, 34 ECAB 379, 381 (1982).

15

Id.

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Dr. Silver did not provide a clear opinion that appellant sustained a diagnosed medical condition
casually related to the accepted September 27, 2017 employment incident. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s condition
or disability is of no probative value on the issue of causal relationship.16 Therefore, these reports
are of no probative value regarding appellant’s claim for a September 27, 2017 traumatic injury and
they are insufficient to establish his claim.
Appellant submitted an October 24, 2017 EMG/NCV study of the lower extremities,
October 28, 2017 x-ray of the right knee/tibia, and December 18, 2017 x-ray of the lumbar spine.
The Board has held, however, that reports of diagnostic tests standing alone lack probative value
as they do not provide an opinion on causal relationship between an employment incident and a
diagnosed condition.17
On appeal counsel argues that OWCP did not give due deference to the opinions of
appellant’s attending physicians. However, as explained above, OWCP properly found that the
medical evidence of record is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his right leg condition and the accepted September 27, 2017 employment
incident, the Board finds that he has not met his burden of proof to establish his claim.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury to his right leg causally related
to the accepted September 27, 2017 employment incident.

16
See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
Appellant also submitted administrative documents regarding visits to healthcare providers in 2017 and 2018, but such
nonmedical documents do not constitute relevant medical evidence, as lay persons are not competent to render medical
opinion. See B.R., Docket No. 17-1661 (issued January 4, 2018); James A. Long, 40 ECAB 538 (1989).
17

See J.M., Docket No. 17-1688 (issued December 13, 2018).

18

The Board notes that the case record contains an authorization for examination and/or treatment (Form CA-16)
dated September 27, 2017. A properly completed Form CA-16 form authorization may constitute a contract for
payment of medical expenses to a medical facility or physician, when properly executed. The form creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R.,
Docket No. 18-0737 (issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P.
Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-2113
Issued: March 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 16, 2013 appellant, through his attorney, filed an appeal from an August 5,
2013 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 met his burden of proof to establish that a July 6, 2009
wage-earning capacity decision should be modified.
On appeal appellant’s attorney asserts that the August 5, 2013 decision is contrary to fact
and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 3, 2006 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim alleging that on November 2, 2006 he injured his head and neck when he hit a stationary
pole with a Hi-Lo he was driving, causing him to fall. He stopped work that day. On
November 6, 2006 Dr. James R. Stubbart, a Board-certified orthopedic surgeon, performed a
cervical laminectomy and fusion from C4 through C7. On December 7, 2008 OWCP accepted
that a concussion and right forehead laceration were caused by the claimed injury. The claim
was later expanded to include permanent aggravation of cervical spondylosis with central cord
syndrome, permanent aggravation of cervical stenosis and incomplete quadriplegia.
On March 16, 2007 appellant accepted a limited-duty assignment for four hours a day.
The duties were that he would prep at desk with sit or stand option for four hours a day and
restrictions on grasping, lifting, twisting and reaching. Appellant returned to modified duty for
four hours a day on March 24, 2007. He thereafter received compensation for four hours a day.
In February 2008 appellant was referred to Dr. Craig T. Kuesel, a Board-certified
osteopath specializing in neurology.2 In a February 26, 2008 report, Dr. Kuesel described a
history that appellant injured his cervical spine in a motor vehicle accident while in the military,
the history of injury, his review of the medical record and physical examination findings. He
diagnosed partial quadriparesis due to myelopathy and due to preexisting cervical spondylosis,
aggravated by the November 2, 2006 employment injury which produced numbness in
appellant’s extremities and significant pain. Dr. Kuesel advised that appellant was disabled from
full-time work duties, that he had significant work restrictions, and that he should not work more
than four hours a day, five days a week. He also indicated that appellant needed to use a fourprong cane.
Appellant came under the care of Dr. Stephen Winston, Board-certified in anesthesiology
and pain medicine, who provided progress notes beginning on April 15, 2008 in which he
described appellant’s physical findings and medical management.
On July 19, 2008 the employing establishment offered appellant a modified mail handler
position based on the restrictions provided by Dr. Kuesel. The offer indicated that the job was
tailored to meet appellant’s physical needs. Appellant accepted the position on July 23, 2008.
In a July 6, 2009 decision, OWCP found that appellant’s part-time earnings in the
modified mail handler position fairly and reasonably represented his wage-earning capacity. It
applied the principles identified in the Shadrick decision,3 finding a new wage-earning capacity
of 51 percent, and reduced his compensation accordingly, effective July 1, 2009. OWCP found
that, based on the restrictions provided by Dr. Kuesel, appellant was capable of part-time
employment in the modified position.
2

In a decision dated February 20, 2008, appellant’s monetary compensation was suspended for failure to attend a
scheduled medical evaluation with Dr. Kuesel. In a May 14, 2008 decision, an OWCP hearing representative
reversed the suspension because the appointment letter was not properly addressed.
3

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

2

On June 24, 2010 the employing establishment notified appellant that, under the National
Reassessment Program (NRP), there was no work available for him and that he would remain on
administrative leave until July 24, 2010. Appellant claimed wage loss beginning July 24, 2010.
On the claim form, the employing establishment indicated that he was an “NRP employee.”
By letter dated November 3, 2010, OWCP informed appellant of the criteria needed to
modify the July 6, 2009 wage-earning capacity determination. In a second letter, it asked the
employing establishment to provide medical evidence in their possession and information
regarding the position he was working at the time he was sent home under NRP, including
whether his duties had changed since the wage-earning capacity determination of July 6, 2009.
Dr. Winston and his associate Dr. Derek Lado, a Board-certified physiatrist, continued to
submit progress reports regarding appellant’s condition and care. On November 30, 2010 he
indicated that appellant’s pain had escalated and that he had progressive weakness. Dr. Winston
advised that appellant was no longer able to work due to the progression of his symptoms. A
December 7, 2010 nuclear medicine bone scan demonstrated severe degenerative changes in the
right C3-4 facet joint and milder changes in the left C4-5 facet joint. A follow-up cervical
computerized tomography (CT) study confirmed the diagnoses. On December 13, 2010
Dr. Lado indicated that appellant had increased loss of balance and was describing myoclonic
jerks and increased spasticity. He recommended physical therapy to increase mobility.
Appellant had a series of lidocaine and Botox cervical spine injections. A November 23, 2011
magnetic resonance imaging (MRI) scan study of the cervical spine demonstrated postsurgical
changes, bilateral foraminal encroachment at C3-4 and no acute findings.
By letter dated April 13, 2012, OWCP asked Dr. Winston to provide an update on
appellant’s medical condition, to include whether he could return to full- or part-time
employment, with or without restrictions. In progress notes dated June 27 and August 12, 2012,
Dr. Winston advised that appellant could not work due to pain and chronic myelopathic changes
from C5 to C6 with some numbness in the distal extremities. On November 6, 2012 he informed
the employing establishment that appellant was unable to work.
In November 2012 OWCP referred appellant to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, for a second-opinion evaluation. In a December 10, 2012 report,
Dr. Obianwu noted his review of the statement of accepted facts and medical record and
appellant’s medical history that included the 1985 cervical injury when he was in the military
and the employment injury that occurred on November 2, 2006. He described appellant’s
complaints of radiating neck pain and limited function in the hands and feet with numbness and
spasm and occasional falls. Dr. Obianwu provided extensive physical examination findings,
noting hyporeflexia in upper extremity reflexes and diminished grasp strength in both hands, an
obvious left-sided scoliosis and tenderness about the cervicothoracic junction. There was no
intrinsic atrophy of the hands and no gross weakness of upper extremity muscle groups.
Dr. Obianwu indicated that appellant walked with an exaggerated limp, leaning against his cane.
He diagnosed preexisting old posterior fusion at C1 to C2 with marked angulation of the
relationship between C1 and C2; preexisting, fairly significant degenerative changes of the lower
cervical spine with neural foraminal narrowing on the left; old clay shoveler’s fracture of C7;
status post posterior cervical laminectomies at C4, C5, C6 and subtotal C7 laminectomies; status
post posterior instrumentation at C4 through C7, with lateral mass screw and rod construct;

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posterolateral fusion at C4 through C7; and mild cervical myelopathy. Dr. Obianwu advised that
appellant continued to have objective findings of the accepted conditions, indicating that the
accepted aggravation of cervical spondylosis still existed but the conditions of central cord
syndrome and aggravation of cervical stenosis no longer existed. He further indicated that
incomplete quadriplegia no longer existed because weakness characteristic of central cord
syndrome in the upper extremity did not exist and there was a lot of exaggeration and
inconsistency in appellant’s responses. Dr. Obianwu stated that appellant had limitation of range
of motion partly attributable to the fused cervical spine and this also caused persistence of some
weakness in the upper extremities that was not as gross a condition as quadriparesis but did limit
functional capacity. He concluded that appellant could not return to full duty due to the accepted
conditions but could work with restrictions. Dr. Obianwu opined that appellant needed extensive
vocational rehabilitation. On an attached work capacity evaluation, he indicated that appellant
was capable of working four hours of restricted duty with permanent restrictions of no reaching
above the shoulder, bending or stooping. Walking, standing and twisting were limited to one
hour and lifting limited to 20 pounds for two hours.
In a January 17, 2013 decision, OWCP denied appellant’s claim for wage-loss
compensation beginning on July 24, 2010 on the grounds that the evidence submitted was
insufficient to modify the July 6, 2009 wage-earning capacity decision. It noted reviewing the
evidence in accordance with FECA Bulletin No. 09-05 and found that the record established that
the position on which the wage-earning capacity decision was based was a bona fide position and
that, while the medical evidence established that he continued to have residuals of the work
injury, he was able to work in a limited-duty assignment for four hours per day, consistent with
the modified mail handler position he was doing prior to July 24, 2010 when he was sent home.
Appellant, through his attorney, timely requested a hearing that was held on
May 16, 2013. At the hearing counsel asserted that the July 6, 2009 wage-earning capacity
determination was in error because the position on which it was based was part time when
appellant had been working full time when he was injured on November 2, 2006 and the position
was makeshift because it was made to accommodate his specific restrictions. He further
maintained that, as appellant’s light duty was withdrawn, he had established a recurrence of
disability. Appellant described his regular and limited-duty positions and indicated that he still
received pay based on the July 6, 2009 wage-earning capacity decision.
In reports dated August 28, 2012 through April 23, 2013, Dr. Winston described
appellant’s continued medical care. He advised that appellant was unable to work due to his
chronic weakness and postlaminectomy fusion pain syndrome. In a June 5, 2013 report,
Dr. Stubbart described appellant’s medical history and complaints of radiating neck pain,
numbness and tingling in the hands and feet and occasional leg jerks that caused him to fall. He
found severe loss of cervical range of motion on physical examination with diminished sensation
in the left C8 and T1 dermatomes. Hoffman’s and Clonus examinations were positive
bilaterally. Dr. Stubbart’s impression was status post C1 to C2 posterior fusion and C4 through
C7 posterior fusion with laminectomies, myelopathy, chronic neck pain and stiffness and
disability. He advised that appellant was clearly impaired and had a significant degree of
disability. Dr. Stubbart recommended additional diagnostic studies. In a June 5, 2013 report,
Dr. Winston indicated that appellant had a “horrible” neck with limited range of motion. He
noted that 2010 diagnostic studies showed good decompression but also showed progression of

4

degenerative changes in the cervical spine and opined that appellant was disabled. A June 11,
2013 cervical spine MRI scan study demonstrated no change since the November 23, 2011 study.
A June 11, 2013 CT scan of the cervical spine demonstrated extensive postoperative changes and
little alteration when compared to the November 23, 2011 MRI scan study. In a June 26, 2013
report, Michael J. Parniske, a physician’s assistant and associate of Dr. Stubbart, noted reviewing
the diagnostic studies with Dr. Stubbart. He indicated that appellant would always have some
degree of neurologic dysfunction and that his ability to work was severely restricted due to
ataxia, upper extremity weakness, restricted cervical spine range of motion and advanced
cervical spondylosis with a risk of falls. Mr. Parniske concluded that appellant was disabled and
this was consistent with Dr. Stubbart’s opinion.
In an August 5, 2013 decision, an OWCP hearing representative affirmed the January 17,
2013 decision. She found that the position on which the wage-earning capacity determination
was based was a bona fide job, that appellant had not been retrained or vocationally rehabilitated
and that the medical evidence did not establish that he was totally disabled.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4 OWCP procedures at section 2.1501 contain
provisions regarding the modification of a formal loss of wage-earning capacity.5 The relevant
part provides that a formal loss of wage-earning capacity will be modified when: (1) the original
rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the
claimant has been vocationally rehabilitated.6 Section 2.1501 further provides that FECA
Bulletin No. 09-05 should be consulted if the circumstances in the case indicate that the position
in question may have been withdrawn (in whole or in part) as a result of NRP.7 FECA Bulletin
No. 09-05 outlines the procedures OWCP should follow when limited-duty positions are
withdrawn pursuant to NRP.
If OWCP has issued a formal wage-earning capacity
determination, it must develop the evidence to determine whether a modification of that
determination is appropriate.8 FECA Transmittal No. 13-09 provides information regarding
updating of procedure manual sections 2.814 and 2.816 and 2.1500 and 2.1501.9 OWCP

4

Katherine T. Kreger, 55 ECAB 633 (2004).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
6

Id. at § 2.1501.3(a).

7

Id. at § 2.1501.1.

8

FECA Bulletin No. 09-05 (issued August 18, 2009).

9

FECA Transmittal No. 13-09 (issued June 4, 2013).

5

procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met.10
ANALYSIS
The Board finds that this case is not in posture for decision. OWCP accepted that
appellant sustained a concussion, right forehead laceration, permanent aggravation of cervical
spondylosis with central cord syndrome, permanent aggravation of cervical stenosis, and
incomplete quadriplegia on November 2, 2006 when he was involved in a Hi-Lo accident at
work. Dr. Stubbart performed cervical laminectomy and fusion from C4 through C7 on
November 6, 2006. Appellant returned to a modified mail handler position for four hours a day
on July 23, 2008. On July 6, 2009 OWCP issued a formal wage-earning capacity decision,
finding that his part-time work fairly and reasonably represented his wage-earning capacity and
reduced his compensation accordingly. Appellant continued his part-time mail handler duties
until June 24, 2010 when he was sent home under NRP. He thereafter claimed wage loss
beginning July 24, 2010.
When a loss of wage-earning capacity decision has been issued, as provided in section
2.1501 of OWCP procedures, FECA Bulletin No. 09-05 is to be consulted if a position has been
withdrawn under NRP.11 FECA Bulletin No. 09-05 requires OWCP to develop the evidence to
determine whether a modification of the decision is appropriate.12 The FECA Bulletin No. 09-05
asks OWCP to confirm that the record contains documentary evidence supporting that the
position on which the wage-earning capacity determination was made was an actual bona fide
position. It further requires OWCP to review whether current medical evidence supports workrelated disability and establishes that the current need for limited duty and medical treatment is a
result of residuals of the employment injury and to further develop the evidence from both
appellant and the employing establishment if the record lacks current medical evidence.13
The FECA Bulletin No. 09-05 further states that OWCP, in an effort to proactively
manage these types of cases, may undertake further nonmedical development, such as requiring
that the employing establishment address in writing whether the position on which the wageearning capacity determination was based was a bona fide position at the time of the wageearning capacity decision and direct the employing establishment to review its files for
contemporaneous evidence concerning the position.
In the case at hand, while OWCP wrote the employing establishment on November 3,
2010 requesting information regarding the position appellant was working at the time he was
sent home under NRP, including whether his duties had changed since the wage-earning capacity
determination of July 6, 2009, it did not specifically ask the employing establishment if the
position on which the wage-earning capacity was based was a bona fide position at the time of
10

Supra note 5 at § 2.1501.4.

11

Supra note 7.

12

Supra note 8.

13

Id.

6

the wage-earning capacity decision. The record does not contain a response from the employing
establishment. Moreover, OWCP procedures in effect at the time the wage-earning capacity was
issued provided that the reemployment may not be considered suitable when the position was
part time and the employee did not work part time at the time of injury.14 In this case on the date
of injury, November 2, 2006, appellant was a full-time mail handler, and the July 6, 2009 wageearning capacity determination was based on a part-time position. It was therefore erroneous on
its face. Moreover, the position description on which the July 6, 2009 wage-earning capacity
determination was based clearly indicated that the job was tailored to meet appellant’s physical
needs and, as noted above, OWCP failed to secure information from the employing
establishment regarding the legitimacy of the position.
Lastly, the Board notes that the record is replete with evidence that appellant continues to
have significant residuals of the accepted conditions, as described by his attending physicians
Drs. Winston, Lado and Stubbart, and by OWCP referral physician, Dr. Obianwu.
As OWCP failed to follow the guidelines provided in FECA Bulletin No. 09-5, the Board
will set aside the August 5, 2013 decision and remand the case to OWCP. After proper and
documented compliance with FECA Bulletin No. 09-05 and any further evidence deemed
necessary, OWCP shall issue an appropriate decision on appellant’s entitlement to wage-loss
compensation beginning July 24, 2010.15
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether
modification of OWCP’s July 6, 2009 wage-earning capacity determination is warranted.

14

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.7 (July 1997). These procedures were
modified in June 2013.
15

See L.P., Docket No. 12-1297 (issued June 18, 2013).

7

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: March 19, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1070
Issued: March 18, 2022

Case Submitted on the Record

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

On July 8, 2021 appellant filed a timely appeal from an April 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-1070.
On December 9, 2020 appellant, then a 53-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed left cubital and carpal tunnel syndrome due
to factors of his federal employment, including sorting, casing, and delivering mail; lifting and
delivering packages; and unloading tubs, bags, and parcels. He indicated that he first became
aware of his condition on September 3, 2020, and that it was related to his federal employment on
November 30, 2020. OWCP assigned this claim File No. xxxxxx436.
Appellant had previously filed a Form CA-2 on November 5, 2020 alleging that he had
sustained carpal tunnel syndrome due to factors of his federal employment including sorting,
casing and delivering mail, as well as lifting packages. He related that he first became aware of
his condition and its relationship to his federal employment on September 3, 2020. OWCP
assigned this claim File No. xxxxxx310.
In a development letter dated December 15, 2020 in the instant claim, OWCP File No.
xxxxxx436, OWCP informed appellant of the deficiencies of his claim. It advised him regarding

the type of medical evidence necessary to establish his claim and provided 30 days for him to
submit the requested evidence.
In response, appellant submitted a medical report dated September 10, 2020 from Dr. Ryan
Beekman, a Board-certified orthopedic and hand surgeon. Dr. Beekman diagnosed tendinosis and
tenosynovitis involving the extensor carpi ulnaris without tendon tear, minimal tenosynovitis of
the extensor carpi radialis longus and brevis tendons. In reports dated September 24 and
November 5, 2020, he diagnosed bilateral carpal tunnel syndrome and also cubital tunnel
syndrome.
In a report dated November 30, 2020, Amy Herrick, a nurse practitioner, related that
appellant was seen for a follow-up appointment for his bilateral carpal tunnel syndrome and that
he was scheduled for a right carpal tunnel release.
In a letter dated January 8, 2021, Dr. Beekman related that appellant underwent bilateral
right and left carpal tunnel release on January 5, 2021. He noted that appellant had indicated that
his hand symptoms of numbness and tingling were significantly exacerbated by his work activities
including lifting heavy objects and repetitive heavy gripping. Dr. Beekman concluded that it was
reasonable to believe that appellant’s bilateral carpal tunnel syndrome and left cubital tunnel
syndrome were causally related to his employment.
By decision dated February 4, 2021, OWCP denied appellant’s claim as causal relationship
was not established between the diagnosed medical conditions and the accepted employment
factors. It concluded, therefore, that the requirements had not been met to establish an injury or
medical condition causally related to the accepted employment factors.
In a letter dated March 2, 2021, Dr. Beekman related that appellant had reported that his
symptoms were significantly exacerbated by his work activities of lifting heavy objects and
gripping. He also stated that medical literature supported that repetitive heavy gripping was a
known cause of carpal tunnel and that he believed that appellant’s work duties caused his bilateral
carpal and left cubital tunnel syndrome.
On March 11, 2021 appellant requested reconsideration of OWCP’s February 4, 2021
decision.
By decision dated April 28, 2021, OWCP denied modification of its February 4, 2021
decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depend on frequent cross-referencing between the files. 1 For
example, if a new injury case is reported for an employee who previously filed an injury claim for

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

a similar condition or the same part of the body, doubling is required.2 Herein, appellant filed a
claim for carpal tunnel syndrome, assigned OWCP File No. xxxxxx310 on November 5, 2020, and
subsequently filed an occupational disease claim on December 9, 2020 for cubital and carpal
tunnel syndrome, assigned OWCP File No. xxxxxx436. The evidence pertaining to OWCP File
No. xxxxxx310, however, is not part of the case record presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx310. Following this and such further
development as OWCP deems necessary, it shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the April 28, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2

Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,
Docket No. 17-0432 (issued August 17, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stratford, CT, Employer
__________________________________________

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

Docket No. 09-1993
Issued: March 19, 2010

Case Submitted on the Record

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

JURISDICTION
On July 30, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ nonmerit decision dated May 13, 2009. The last merit decision was
issued on November 25, 2008. An appeal of Office decisions issued on or after November 19,
2008 must be filed within 180 days. Under 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board does
not have jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 36-year-old letter carrier, filed a claim on October 16, 2008, alleging that he
injured his low back while carrying a satchel of mail.

Appellant submitted an October 18, 2008 Form CA-17 duty status report, which related
his account that he experienced a sharp pain in his low back while walking on October 16, 2008
and provided a diagnosis of lumbar strain. The form contains an illegible physician’s signature.
A box was checked indicating that appellant’s injury corresponded with the description he
provided.
On October 23, 2008 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition, and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
In an October 16, 2008 report, received by the Office on October 24, 2008, Dr. Bert
Ventura, a chiropractor, related appellant’s history of injury and stated findings on examination.
He noted that appellant had complaints of low back pain and soreness but denied any numbness,
tingling or radiation. Dr. Ventura advised that appellant’s symptoms were exacerbated by
bending, standing or squatting; he stated that appellant was not in acute distress and diagnosed
lumbar strain.1
In an October 22, 2008 report, received by the Office on October 29, 2008,
Dr. Chander E. Devaraj, a Board-certified family practitioner, diagnosed lumbosacral strain. He
stated that appellant was feeling better and experiencing improvement in the pattern of
symptoms due to a regimen of physical therapy. Dr. Devaraj rated appellant’s pain at a four on a
scale of one to ten. He advised that appellant had some tenderness of the right lumbosacral spine
at the L5-S1 level and recommended that he remain on modified duty.
In a report dated October 23, 2008, received by the Office on October 31, 2008,
Dr. Devaraj reiterated that appellant’s condition was improving with medication and physical
therapy. He listed findings on examination and noted that appellant was working within his
restrictions. Dr. Devaraj reiterated that appellant had a lumbar strain but was not in acute
distress.
By decision dated November 25, 2008, the Office denied appellant’s claim, finding that he
failed to submit sufficient medical evidence to establish that he sustained a low back injury in the
performance of duty on October 16, 2008.2
On March 26, 2009 appellant requested reconsideration. He submitted an October 16,
2008 work accident form report from his insurance carrier and an undated copy of his letter
carrier position description, which the Office received on April 1, 2009. Appellant resubmitted
medical evidence previously of record.

1

The Office also received reports dated October 20 to 23, 2008 from Richard Murray, a physical therapist.

2

Effective November 19, 2008, the Board’s Rules of Procedure require that an appeal be filed within 180 days of
an Office decision. 20 C.F.R. § 501.3(e).

2

By decision dated May 13, 2009, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.3 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.4
ANALYSIS
The Office accepted that appellant experienced lower back pain while carrying a mail
satchel on October 16, 2008. It denied appellant’s claim because he had not established that the
employment incident caused a personal injury by probative medical evidence.5 Appellant
thereafter requested reconsideration.
In denying appellant’s request for reconsideration, appellant did not show that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. The evidence submitted is not pertinent to the issue on
appeal. Appellant submitted an October 16, 2008 insurance accident form report and an undated
copy of his job description. The Board has held that the submission of evidence which does not
address the particular issue involved in the case does not constitute a basis for reopening the
claim.6 Moreover, appellant did not submit any new medical evidence which addresses the
relevant issue of whether he sustained a lower back condition in the performance of duty on
October 16, 2008. The medical reports appellant submitted were previously considered by the
Office in the decision denying his claim. This evidence is cumulative and duplicative of that of
record.7 Appellant’s reconsideration request failed to show that the Office erroneously applied
or interpreted a point of law nor did it advance a point of law or fact not previously considered
by the Office. The Office did not abuse its discretion in refusing to reopen appellant’s claim for
a review on the merits.

3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

5

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

6

See David J. McDonald, 50 ECAB 185 (1998).

7

See Patricia G. Aiken, 57 ECAB 441 (2006).

3

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Windsor Locks, CT, Employer
__________________________________________

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

Docket No. 21-0268
Issued: July 7, 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 December 21, 2020 appellant, through counsel, filed a timely appeal from an October 7,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 7, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period July 7 through September 20, 2019 causally related to his accepted December 28,
2017 employment injury.
FACTUAL HISTORY
On December 28, 2017 appellant, then a 59-year-old clerk, filed a traumatic injury claim
alleging that on that date he suffered a hip injury after he slipped and fell down stairs while in the
performance of duty. He initially stopped work on December 28, 2017. On August 17, 2018
OWCP accepted the claim for right knee contusion and left knee contusion.
In an August 21, 2018 memorandum of telephone call (Form CA-110), appellant informed
OWCP that he had returned to full-time limited-duty work. He stopped work again on January 22,
2019 and did not return.
In a July 16, 2019 report, Dr. Brett Wasserlauf, a Board-certified orthopedic surgeon, noted
that appellant experienced right knee pain after falling down stairs at work. He indicated that
appellant had difficulty bearing weight on his right knee, walking extended distances, and
ascending stairs. Dr. Wasserlauf provided physical examination findings and diagnosed right
quadriceps tendon rupture, patellofemoral arthritis of the right knee, and chronic right knee pain.
He recommended surgical intervention and advised that appellant should avoid impact-type
activities.
On July 25, 2019 appellant filed a claim for compensation (Form CA-7) for disability from
work during the period July 7 through 20, 2019.
On August 1, 2019 OWCP expanded the acceptance of appellant’s claim to include right
quadriceps tendon rupture.
In a development letter dated August 7, 2019, OWCP advised appellant that it had received
his Form CA-7 claim for wage-loss compensation for the period July 7 through 20, 2019. It
requested that he provide medical evidence establishing disability during the period claimed.
OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP subsequently received hospital notes, dated July 22, 2019, and a magnetic
resonance imaging (MRI) scan of his right knee, of even date, which revealed no internal
derangement and fatty atrophy of partial-thickness distal quadriceps tendon tear.
On August 8, 2019 appellant filed a Form CA-7 claim for compensation for disability from
work for the period July 21 through August 2, 2019.
In a letter dated August 16, 2019, OWCP informed appellant that no action could be taken
on his CA-7 claim or any subsequent CA-7 claims until he provided medical evidence to support
that he was totally disabled from work for the periods claimed.
OWCP subsequently received an August 12, 2019 report from Dr. Wasserlauf who noted
that appellant experienced continued right knee pain. Dr. Wasserlauf indicated that appellant had
2

an inability to bear weight, loss of motion, and muscle weakness, which was aggravated by
movement and lifting. He provided physical examination findings and diagnosed right quadriceps
tendon rupture and patellofemoral arthritis of the right knee. Dr. Wasserlauf advised that the
benefits of quadriceps surgery would outweigh the risks.
On September 5, 2019 appellant filed a Form CA-7 claiming compensation for disability
from work for the period July 6 through September 6, 2019.
Appellant submitted a July 16, 2019 workers’ status report from Dr. Wasserlauf who
diagnosed right quadriceps tendon rupture and patellofemoral arthritis of the right knee.
Dr. Wasserlauf noted that appellant was not currently working and advised that he could perform
sedentary work with the restriction of lifting no more than 10 pounds.
On September 19, 2019 appellant filed a Form CA-7 claiming compensation for disability
from work for the period September 7 through 20, 2019.
In a letter dated September 30, 2019, OWCP noted that it had received appellant’s Form
CA-7. It informed appellant that additional evidence was needed to establish his claim.
On December 16, 2019 appellant, through counsel, requested reconsideration of the
purported September 30, 2019 decision, noting that OWCP did not address the claimed periods of
disability.
By decision dated May 15, 2020, OWCP denied appellant’s claim for compensation for
disability during the period July 7 through September 20, 2019. It found that the medical evidence
of record was insufficient to establish disability from work during the claimed periods.
In an April 10, 2020 report, Dr. Neil Allen, a Board-certified specialist in internal
medicine, reviewed appellant’s medical record and history of injury. He noted that appellant
initially returned to work on January 20, 2018, but the employing establishment did not honor his
attending physician’s work restrictions. Dr. Allen reported that appellant suffered repetitive
buckling of his right knee and fell on several occasions due to right knee instability. He indicated
that on January 22, 2019 appellant pushed a parcel weighing over 2,000 pounds when his right
knee buckled, and he was nearly crushed by the parcel. Dr. Allen noted that appellant stopped
work on that date and sought surgical repair of his right quadriceps tendon tear, which was never
authorized. He reported that appellant experienced continued right knee pain and reviewed MRI
scans and x-rays of his right knee. Dr. Allen opined that appellant’s requested surgical procedure
was appropriate and medically necessary. He indicated that once fatty infiltration occurred the
tendon could no longer heal on its own and surgical repair was the only treatment option.
On June 1, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 31, 2020.
During the hearing, appellant testified that he stopped working in January 2019 because he fell at
work after a package almost tipped over on him. He further indicated that he fell in June 2020 and
hurt his ankle. Appellant reported that he asked the employing establishment for limited-duty or
sedentary work.
By decision dated October 7, 2020, OWCP’s hearing representative affirmed the May 15,
2020 decision, finding that the medical evidence of record was insufficient to establish disability
3

from work during the claimed periods causally related to the accepted December 28, 2017
employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that any disability or specific condition
for which compensation is claimed is causally related to the employment injury.5
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 6 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.7
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the specific employment factors
identified by the claimant.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period July 7 through September 20, 2019 causally related to his accepted
December 28, 2017 employment injury.

4

Supra note 2.

5

B.M., Docket No. 19-1075 (issued February 10, 2021); S.W., Docket No. 18-1529 (issued April 19, 2019);
J.F., Docket No. 09-1061 (issued November 17, 2009).
6

20 C.F.R. § 10.5(f); see J.K., Docket No. 20-0606 (issued March 11, 2021); B.K., Docket No. 18-0386 (issued
September 14, 2018).
7

See C.E., Docket No. 19-1617 (issued June 3, 2020).

8

See K.H., Docket No. 19-1635 (issued March 5, 2020).

9

See K.A., Docket No. 19-1564 (issued June 3, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005); William A.
Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

Appellant filed CA-7 forms, dated July 25 through September 19, 2019, claiming
compensation for disability from work for the period July 7 through September 20, 2019.
In support of his claim, appellant submitted reports from Dr. Wasserlauf, dated July 16
through August 12, 2019, who diagnosed right quadriceps tendon rupture and patellofemoral
arthritis of the right knee. Dr. Wasserlauf noted that appellant had difficulty putting weight on his
right knee, walking extended distances, and ascending stairs. He advised that appellant could
perform sedentary work with the restriction of lifting no more than 10 pounds. The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how appellant’s claimed disability is causally related to the accepted
employment injury.10 As such, this evidence is insufficient to establish appellant’s disability
claim.
In an April 10, 2020 report, Dr. Allen reviewed appellant’s medical record and history of
injury. He opined that appellant’s requested right knee procedure was appropriate and medically
necessary. Dr. Allen noted that once fatty infiltration occurred the tendon could no longer heal on
its own and surgical repair was the only treatment option. However, he did not address appellant’s
work status or explain how his symptoms disabled him from work during the claimed period.
Accordingly, Dr. Allen’s report is also of limited probative value regarding causal relationship and
insufficient to establish appellant’s claim.11
Appellant also submitted an MRI scan of his right knee, dated July 23, 2019. The Board
has held, however, that diagnostic studies, standing alone, lack probative value on the issue of
causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates.12
As the medical evidence of record does not include a rationalized opinion on causal
relationship between appellant’s claimed disability and his accepted employment injury, the Board
finds that he has not met his burden of proof.13
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 his burden of proof to establish disability from
work for the period July 7 through September 20, 2019 causally related to his accepted
December 28, 2017 employment injury.

10

See B.M., supra note 5.

11

Id.

12

S.D., Docket No. 20-1255 (issued February 3, 2021); O.C., Docket No. 20-0514 (issued October 8, 2020).

13

J.E., Docket No. 19-1758 (issued March 16, 2021).

5

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 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

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

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

Docket No. 09-993
Issued: November 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 6, 2009 appellant timely appealed the February 6, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied his traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 25, 2007.
FACTUAL HISTORY
On May 19, 2008 appellant, then a 34-year-old letter carrier, filed a traumatic injury
claim for a lumbar spine injury that allegedly occurred on October 25, 2007. He was delivering
a parcel to a home and when he bent down to place the item on the porch floor he felt a crack in
his lower back, followed by pain in the low back region. Approximately two weeks after the
incident appellant sought medical treatment. According to him, he sustained a herniated disc as

a result of the employment incident.
October 25, 2007 back injury.1

Appellant continued to work following the claimed

On November 9, 2007 appellant saw Dr. Robert E. Jones II, a Board-certified family
practitioner. He complained of back pain and reported that he had hurt his back several weeks
ago. The pain had recently worsened. Dr. Jones’ diagnosis was “back pain” and he
recommended that appellant obtain an x-ray. A November 21, 2007 lumbar x-ray revealed
degenerative disc disease at L5-S1. Appellant returned to Dr. Jones on December 11, 2007 and
he diagnosed “back pain with radiculopathy.”
On January 23, 2008 appellant saw Dr. Georges Z. Markarian, a Board-certified
neurosurgeon. Appellant complained of right-sided low back pain radiating into his buttock,
lateral thigh and lateral ankle. His complaints dated back to November 2007. The pain
reportedly started acutely. Dr. Markarian interpreted a recent lumbar magnetic resonance
imaging (MRI) scan as showing a mild right-sided L5-S1 disc herniation. He noted that the disc
herniation was not severe enough to currently warrant surgical intervention. Dr. Markarian
recommended physical therapy and a follow-up visit in six weeks.
Appellant next saw Dr. Markarian on May 13, 2008. He reportedly had been doing
reasonably well since his last visit in January 2008, but recently appellant’s pain had
significantly worsened and his leg was bothering him. On physical examination, Dr. Markarian
noted a positive straight leg raise and significant weakness in appellant’s leg. He recommended
that appellant obtain a new lumbar MRI scan and return for follow-up once the scan was
completed.
On May 19, 2008 appellant was treated in the Twin City Hospital emergency room. His
diagnosis was back pain and lumbar spine herniated disc. Appellant reported injuring himself on
October 25, 2007 while dropping off a parcel at a customer’s house. He stated that he bent to set
the parcel down and felt his lower back crack. The attending physician responded “Yes” to the
preprinted form’s question: “Is the injury causally related to the industrial incident?” However,
the physician did not provide an explanation for the affirmative response. Appellant was
released that same day and placed on light duty with a 10-pound lifting restriction.
A May 20, 2008 lumbar MRI scan showed degenerative disc disease at L5-S1 with disc
protrusion. It was noted that appellant’s condition had progressed when compared to an earlier
lumbar MRI scan dated December 14, 2007. This latest study showed a marked effacement of
the existing right S1 nerve root sleeve and attendant central spinal stenosis.
Appellant saw Dr. Markarian again on May 27 and June 4, 2007. Dr. Markarian
reviewed appellant’s latest lumbar MRI scan and recommended that he undergo a right L4-5
microdiscectomy.
By decision dated July 7, 2008, the Office accepted that the October 25, 2007
employment incident occurred as alleged. However, it denied the claim because the medical
1

The employing establishment challenged the claim because of the more than six-month delay in reporting the
injury and the fact that appellant continued to perform his regular duties following the alleged injury.

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evidence did not demonstrate a causal relationship between the accepted employment incident
and the diagnosed lumbar condition.
The Office subsequently received a July 9, 2008 prescription pad note from
Dr. Markarian who provided a diagnosis of lumbar herniated disc and advised that appellant was
scheduled for lumbar surgery on July 17, 2008.
Appellant requested a hearing, which was held on November 13, 2008. At a posthearing
appellant submitted his medical records from the Department of Veterans Affairs (VA). The
records reflected ongoing psychiatric treatment for service-connected post-traumatic stress
disorder (PTSD). Although the VA medical records did not reflect treatment of appellant’s
lumbar condition, the psychiatric records for August 26 and 29, 2008 mentioned appellant
having recently undergone back surgery. August 29, 2008 session notes with clinical
psychologist, James D. Mullen, indicated that appellant reported that it had been hectic the last
three months, during which he blew out a disc, had surgery and was laid up. Appellant told his
therapist that it happened at work delivering a package.
In a decision dated February 6, 2009, the Office hearing representative affirmed the
July 7, 2008 decision denying appellant’s claim. The hearing representative similarly found that
the medical evidence did not support that appellant sustained an injury as a result of the
October 25, 2007 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment

2

5 U.S.C. §§ 8101-8193 (2006).

3

20 C.F.R. § 10.115(e), (f) (2008); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

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incident that is alleged to have occurred.4 The second component is whether the employment
incident caused a personal injury.5
ANALYSIS
The Office accepted that the October 25, 2007 employment incident occurred as alleged.
The medical evidence of record does not establish that the October 25, 2007 employment
incident either caused or contributed to appellant’s claimed lumbar herniated disc. Neither
Dr. Jones nor Dr. Markarian referenced the October 25, 2007 employment incident in any of
their respective reports. In fact, they do not mention any work-related events or otherwise
address the cause of appellant’s lumbar condition. Consequently, the reports of Dr. Jones and
Dr. Markarian are insufficient to establish that appellant sustained an employment-related back
condition on October 25, 2007.
The May 19, 2008 emergency room treatment records represent the only medical
evidence that specifically relates appellant’s back condition to his employment. This evidence is
also insufficient to establish an employment-related back condition. The emergency room health
care provider who attributed appellant’s back pain and lumbar herniated disc to the October 25,
2007 employment incident did not explain the basis for his or her opinion on causation. The
individual simply responded “Yes” to a preprinted form question of whether the injury was
causally related to the industrial incident.6 A simple “yes” without further elaboration does not
constitute a rationalized medical opinion on causal relationship. The physician must explain the
basis for his or her opinion.7 The emergency room treatment records do not explain how
bending down to place a parcel on a porch floor either caused or contributed to appellant’s
lumbar herniated disc.
The only other mention of a work-related back injury appeared in appellant’s VA medical
records. While appellant’s clinical psychologist is competent to treat his PTSD, Dr. Mullen is
not in a position to offer any insight as to the cause of appellant’s orthopedic condition.8
Moreover, his August 29, 2008 reference to a work-related back injury appears to be no more
than a recitation of the information appellant provided during their therapy session that day.
Accordingly, Dr. Mullen’s August 29, 2008 treatment notes and the VA medical records in
general do not substantiate appellant’s claim for an employment-related lumbar condition.
The Board finds that the Office properly denied appellant’s traumatic injury claim in light
of his failure to provide competent medical evidence demonstrating a causal relationship
between the October 25, 2007 employment incident and his claimed lumbar condition.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

On May 19, 2008 appellant provided the same history of injury to the emergency room caregivers as he reported
on his May 19, 2008 Form CA-1. Essentially, he was dropping off a parcel at a customer’s home when he bent over
to place the parcel down on the porch and felt his lower back crack.
7

Victor J. Woodhams, supra note 3.

8

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

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CONCLUSION
Appellant has not established that he sustained an injury in the performance of duty on
October 25, 2007.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
BOYERS HR SERVICES TEAM, Boyers, PA,
Employer
__________________________________________

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

Docket No. 16-0636
Issued: October 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 18, 2016 appellant, through counsel, filed a timely appeal from a January 4,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant sustained an injury on November 20, 2014 while in the
performance of duty.
FACTUAL HISTORY
On November 26, 2014 appellant, then a 50-year-old legal administrative specialist filed
a claim for traumatic injury (Form CA-1) alleging that on November 20, 2014, while he was in
the nurse’s office, he fell over a chair while putting on his left boot. He indicated that his elbow,
neck, and shoulder hit the wall and his left leg, back, and left knee hit the floor. Appellant’s
normal duty hours were from 9:00 a.m. to 5:30 p.m. He stopped work on November 20, 2014 at
approximately 11:00 a.m. and returned to work on November 26, 2014.
The employing establishment controverted the claim. Martha J. Hughes, appellant’s
supervisor, advised that appellant had not informed her or any other employee of his visit to the
nurse nor did he sign out. Employees were required to notify someone when they visited the
nurse, for whatever reason, and to also sign in and out for safety and security reasons.
Ms. Hughes also noted that appellant was visiting the nurse for a condition unrelated to his back
and had requested to rest for a bit. Under claim number xxxxxx580, OWCP had denied his
traumatic injury claim for an April 25, 2014 lifting incident in which he felt extreme pain in his
back and legs. The supervisor indicated that, in the week prior to the November 20, 2014
incident, appellant had unscheduled absences and on November 19, 2014 he was presented with
a leave restriction letter due to his excessive absences.
In a February 12, 2015 letter, OWCP advised appellant of the factual and medical
evidence necessary to establish his claim. A questionnaire was provided for his completion.
Appellant was asked to describe in detail how his injury occurred.
In a November 20, 2014 treatment note, Susan Burdick, registered nurse, indicated that at
10:15 a.m., appellant visited the nurse’s office complaining of a sore, swollen throat and low
back and leg pain. She noted that he had a history of chronic low back pain and had a morphine
pump. Appellant requested bed rest. At approximately 11:05 a.m., he called Nurse Burdick into
the bed rest room, where she found him in a semi-sitting position on the floor with a chair on its
side at his foot. Appellant reported that his leg gave out. Nurse Burdick assisted him back onto
the bed. Appellant requested to go home and she drove him to his vehicle in the parking lot and
gave him a cane for walking assistance. He drove home at 11:20 a.m.
In a December 4, 2013 report, Dr. Mark R. LoDico, a Board-certified anesthesiologist,
diagnosed appellant with lumbar spinal pain, lower extremity radiculopathy, and cervical spine
pain. He noted that appellant had a history of back surgeries in 1990 and 2004 and had an
intrathecal morphine pump implanted in 2004. The x-rays of the back and hip did not show any
fractures. Dr. LoDico noted that appellant had requested a month off work, but was only
approved for 10 days from the employing establishment. He later kept appellant off work. In a
February 17, 2015 report, Dr. LoDico indicated that the February 5, 2015 magnetic resonance
imaging (MRI) scan was similar to the prior MRI scan of February 3, 2014.

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In a March 10, 2015 report, Dr. David M. Sack, a Board-certified internist and
gastroenterologist, an employing establishment physician, reviewed appellant’s claim. He
indicated that the fall appeared to have occurred as a result of a personal medical issue and
should be considered as incidental to his employment. Dr. Sack noted that appellant had a longstanding and severe lumbar condition that had required an indwelling morphine pump for 10
years and that there were no changes on the most recent MRI scan when compared to one done a
year ago. Thus, he concluded that there was no aggravation or exacerbation. Appellant’s
disability claim appeared to be based primarily on pain.
By decision dated March 27, 2015, OWCP denied the claim because appellant had not
responded to OWCP’s questionnaire regarding the circumstances of the injury.
On April 2, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on October 21, 2015. He testified that he went to
the nurse’s office because he was having pain in his leg. Appellant related that he had informed
his supervisor that he was going to visit the nurse, but that he did not sign out. He rested in a
dark room for approximately 45 minutes. While appellant was putting on his boots in the dark,
he fell over a chair. He indicated that he returned to work in July 2015, but had missed work
intermittently due to flare ups. Appellant indicated that he had underlying conditions of
herniated discs and radiculopathy.
Counsel for appellant argued that his injury was compensable under the personal comfort
doctrine because it occurred on the employing establishment’s premises.
In an October 1, 2015 report, Dr. Richard Plowey, a Board-certified neurologist and pain
specialist, diagnosed low back pain and radiculopathy due to tripping over a chair in the nurse’s
office.
In a November 20, 2015 statement, the employing establishment asserted that
Dr. Plowey’s report failed to explain how appellant’s medical condition changed/worsened due
to the alleged work injury on November 20, 2014.
By decision dated January 4, 2016, an OWCP hearing representative modified the denial
of claim to find that appellant had established that the incident occurred on November 20, 2015,
but that he was not in the performance of duty at the time of the incident.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of, and in the course of
employment.4 In the course of employment relates to the elements of time, place, and work
3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

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activity. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in his master’s business, at a place when he
may reasonably be expected to be in connection with his employment, and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.
As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours, at lunch time, or on authorized break are
compensable.5
It is well settled that an employee who within the time and space limits of employment
engages in an act that ministers to personal comfort, health, or necessity does not leave the
course of employment. An injury sustained on the employee’s way to, from, or during a period
of ministering to such needs is compensable as arising out of and in the course of employment,
unless there is a departure so great that an intent to abandon the job temporarily may be inferred,
or unless the conduct cannot be considered an incident of the employment.6
Even if the activity cannot be stated in any sense to advance the employer’s interest, it
may still be in the course of employment if, in view of the nature of the employment
environment, the characteristics of human nature and the customs or practices of the particular
employment, the activity is in fact an inherent part of the conditions of that employment.7
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.8
ANALYSIS
Appellant filed a claim alleging that he sustained a traumatic injury on November 20,
2014 while he was in the employing establishment’s nursing station. By decision dated
January 4, 2016, OWCP determined that his injury did not arise in the performance of duty.
5

Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52
ECAB 209 (2001).
6

A. Larson, The Law of Workers’ Compensation § 21 (2007); see, e.g., Dorothy F. Huber, 19 ECAB 147 (1967)
(the Board found that a mail carrier who was injured in an automobile accident while driving home to change her
wet uniform before resuming duties at the employing establishment was in the performance of duty at the time of
injury because the purpose of her travel home was not purely personal in nature, but inured to the benefit of the
employing establishment).
7

Conrad R. Debski, 44 ECAB 381 (1993).

8

See L.K., Docket No. 08-849 (issued June 23, 2009); see also Bradford N. Reed, 56 ECAB 428 (2005).

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Appellant testified that he fell over a chair while putting on his boots in a darkened room
at the nurse’s office. The nurse observed him on the floor shortly after the injury and noted that
he reported that his leg gave out. Appellant’s statement that an injury occurred at a given time
and in a given manner is of great probative value and will stand as it is not refuted by strong or
persuasive evidence.9 Thus, it is accepted that appellant fell over a chair in the nurse’s office on
November 20, 2014.
The Board further finds that the weight of the probative evidence of record establishes
that the November 20, 2014 fall occurred in the performance of duty under the personal comfort
doctrine.10
At the time of his fall, appellant was ministering to his personal comfort by engaging in
bed rest at the nursing station on the employing establishment’s premises. He had a history of
chronic low back pain and had a morphine pump and had requested bed rest at the nurse’s office
complaining of a sore, swollen throat, low back, and leg pain. The injury occurred after
appellant had been at the nurse’s office engaged in bed rest for approximately 45 minutes.11
OWCP’s procedure manual acknowledges that injuries sometimes occur while the
employee is allegedly engaged in a personal act for the employee’s comfort, health, convenience,
or relaxation. In these cases, it is particularly essential to determine whether the act was one
which is regarded as a normal incident of the work experience, or was one which is foreign or
extraneous to the work experience, and the extent to which the employee diverted from duty to
perform the act. Factors to be considered in determining whether the personal act can be
regarded as a normal incident of the work experience included:
(a) The precise location of the scene of the accident in relation to the industrial
premises, and the place where the employee regularly performed assigned duties;
(b) Whether the employee was performing assigned duties immediately preceding
the personal act …;
(c) A description of the personal act in which the employee was engaged;
(d) Whether for this purpose the employee was using the nearest available
facilities or those intended for such use; and
(e) The extent of the employee’s diversion from duty in terms of time and
distance.12
9

Michelle Kunzwiler, 51 ECAB 334 (2000); Edward W. Malaniak, 51 ECAB 279 (2000).

10

Given the Board’s disposition of this issue, counsel’s arguments on appeal will not be addressed.

11

Regarding the issue of a compensable time period for a rest or sleep break, Larson, supra note 6 at § 21.71
relates that the controlling guide should be found in the practice of the employing establishment, coupled with the
employee’s needs and condition at the time of injury.
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.7(b) (August 1992).

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The Board finds that appellant’s action of going to the nurse’s office to rest, even absent
authorization by his supervisor, is within the ambit of what is deemed reasonable, and a normal
incident of work.13 Appellant, at the time of the accepted incident, was ministering to his
personal comfort by engaging in bed rest at the nurses’ station on the employing
establishment’s premises. The record reflects that appellant began his tour of duty at 9:00 a.m.,
and then went to the nursing station at 10:15 a.m. for symptoms of a sore throat, as well as low
back and leg pain.
Unlike cases wherein the employee sought personal comfort during a break off
premises, appellant’s alleged injury occurred on premises.14 The Board notes that the personal
comfort doctrine is intended to provide coverage to employees while injured on the employing
establishment premises when ministering to their personal comfort.15 Appellant’s alleged
injury occurred on premises, during work hours when he visited the nurse’s office
On remand, OWCP should address the issue of causal relationship between the accepted
November 20, 2014 employment incident and appellant’s alleged medical conditions. After
such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has established that an employment incident occurred on
November 20, 2014 while in the performance of duty. The case is not in posture for decision
regarding the nature and extent of any injury or disability that resulted from the November 20,
2014 employment incident.

13

See J.O., Docket No. 09-1432 (issued February 3, 2010) (where the Board held that appellant’s action of
walking to her personal vehicle to clean off snow, while on lunch, is within the ambit of what is deemed reasonable,
even absent authorization by her supervisor). See also Annette Stonework, 35 ECAB 306 (1983) (where the Board
held that appellant’s use of a portion of her lunch hour to purchase stamps for her personal use from a postal facility
on the premises of the employing establishment did not take her injury outside the performance of duty); see also
C.S., Docket No. 06-1121 (issued August 22, 2006) (where appellant was injured on the employing establishment
premises on her way to a credit union while on her break, the Board found that this personal convenience was
reasonably incidental to her employment and, therefore, compensable).
14

See L.K., Docket No. 08-0849 (issued June 23, 2009).

15

See V.O., 59 ECAB 500 (2008); Sari A. Shapiroholland, 47 ECAB 682 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: October 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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