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

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

Docket No. 07-261
Issued: May 11, 2007

Case Submitted on the Record

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

JURISDICTION
On November 7, 2006 appellant filed a timely appeal from an August 24, 2006 merit
decision of the Office of Workers’ Compensation Programs denying her claim for wage-loss
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has jurisdiction over the
merits of this wage-loss case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for wage-loss
compensation for the period July 14 to August 4, 2005.
FACTUAL HISTORY
On September 21, 2004 appellant, then a 37-year-old mail processing clerk, filed an
occupational disease claim alleging that on September 3, 2004 she first realized her tendinitis
was employment related. The Office accepted the claim for left shoulder tenosynovitis, left
shoulder impingement, left lateral epicondylitis, cervical strain and left shoulder rotator cuff

syndrome. It paid wage loss for total disability for the periods January 7 to February 2 and
June 16 to 26, 2005.
On July 14, 2005 appellant filed a claim for compensation (Form CA-7) requesting wage
loss for the period June 16 to 27, 2005. Accompanying her claim were reports dated June 10, 16
and 27, 2005 by Dr. Christopher B. Ryan, an attending Board-certified physiatrist, a time
analysis form1 and a leave summary. The Office accepted appellant’s claim by decision dated
January 18, 2006 and authorized compensation for 40 hours of wage loss claimed from June 17
to 21, 2005 and 24 hours of wage loss claimed from June 24 to 26, 2005.
On July 14, 2005 duty status report (Form CA-17), Dr. Ryan indicated that appellant was
totally disabled beginning that date and her next appointment was August 4, 2005. In a report
dated July 14, 2005, Dr. Ryan reported that appellant “continues to have very significant
symptomatology which sounds radicular.” He filled out a Form CA-17 which “takes her off
work, as she should not return to work on the basis of her work-related injuries.”
In an August 14, 2005 Form CA-17, Dr. Ryan released appellant to work as of August 5,
2005 with restrictions including no casing over shoulders and “must work days.”
On August 4, 2005 appellant filed a claim for compensation (Form CA-7) requesting
wage loss for the period July 14 to August 4, 2005.
By decision dated August 26, 2005, the Office denied appellant’s request for wage-loss
compensation for the period June 16 to 27, 2005.
On September 8, 2005 Dr. Ryan reported that a December 1, 2004 magnetic resonance
imaging scan revealed left C6 lateral nerve root impingement. As a result of the nerve
impingement appellant “has had intermittent pain in exactly that C6 nerve root distribution.”
Dr. Ryan opined that appellant “is incapable of working when she has these flare-ups and
therefore I took her off work.” In a second report dated September 8, 2005, Dr. Ryan stated that
he “would not disagree at all with your characterization” that appellant was not disabled for the
period July 14 to August 4, 2005 due to her accepted work injuries.
By decision dated September 19, 2005, the Office denied appellant’s request for wageloss compensation for the period July 14 to August 4, 2005.
On October 13, 2005 Dr. Ryan stated that he misspoke when he stated that appellant was
not disabled for the period July 14 to August 4, 2005 due to her employment injuries. He stated
that he had confused appellant’s vacation time with this period of disability. Dr. Ryan stated that
he took appellant off work due to a C6 nerve root distribution aggravation and that this was
noted on a CA-17 form that he completed. In a progress note dated October 13, 2005, Dr. Ryan
stated that he made a mistake when he concluded that appellant’s time off for the period July 14
to August 4, 2005 was not employment related. He reported that appellant continued with the

1

The form noted that appellant used 40 hours of leave without pay (LWOP) for June 17 to 21, 2005 and 24 hours
of LWOP for June 24 to 26, 2005.

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same symptoms which are “difficulty using her hands in front of her and gets parasthesias in
ostensibly the C6 distribution persistently.
On January 19, 2006 appellant requested reconsideration of the September 19, 2005
decision denying wage loss for the period July 14 to August 4, 2005.
On April 4, 2006 the Office denied modification of the September 19, 2005 decision.
On May 3, 2006 Dr. Ryan diagnosed cervical radiculopathy which he attributed to her
employment. In support of this conclusion, he stated:
“The only thing that persists at this time, and the only diagnosis that makes any
sense, is the C6 radiculopathy. Let me point out also for the record that your
discussion of ‘underlying conditions’ included stenosis, radiculopathy, and
paresthesis (sic), are part and parcel of the cervical condition, and have nothing to
do with the cervical strain. I take it that the last diagnosis was parathesias, which
are symptoms of the compression of the C6 nerve root. To say that she has a
radiculopathy is the same thing as the C6 nerve root entrapment. She does not
have cervical canal stenosis, nor has there been any indication that she did. There
is stenosis of the C5-6 neural foramen, but the general diagnosis of stenosis does
not make any sense.”
With respect to appellant’s disability, the physician stated that appellant had an aggravation of
her condition which “required time off to treat.” Dr. Ryan indicated that “there are a number of
factors that can cause further compression of the C6 nerve root.”
On June 2, 2006 appellant requested reconsideration of the denial of wage loss for the
period July 14 to August 4, 2005.
By letter dated June 20, 2006, the Office referred appellant, together with the case record,
a statement of accepted facts and a list of questions to be addressed, to Dr. John D. Douthit, a
Board-certified orthopedic surgeon, for a second opinion medical examination.
On July 18, 2006 Dr. Douthit reviewed the medical evidence and listed findings on
physical examination. He diagnosed pain behavior, possible radiculopathy and left arm and neck
pain syndrome. Dr. Douthit explained that the diagnosis of possible radiculopathy was based on
review of the MRI scans. He stated:
“The MRI [scan] was described as showing an osteophyte or light dis[c]
protrusion, but this certainly does not account for the bilateral symptoms or the
persistence of pain. She had no significant relief from nerve root injections and I
am thus very skeptical of this being a radiculopathy with normal reflexes, normal
strength, and no atrophy or loss of neurological function. I would thus conclude
that this is a pain syndrome of the left shoulder and neck.”
Dr. Douthit opined that appellant continued to experience pain as a result of her accepted
cervical and shoulder strains.

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In a letter dated August 2, 2006, the Office forwarded Dr. Douthit’s report to Dr. Ryan
for comment. Dr. Ryan did not provide any response within 30 days as requested.
By decision dated August 24, 2006, the Office denied modification of the June 2, 2006
decision.2 The Office found that appellant failed to submit rationalized medical evidence
establishing that she was disabled from work for the period July 14 to August 4, 2005.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence.4
For each period of disability claimed, the employee has the burden of establishing that she was
disabled for work as a result of the accepted employment injury.5 Whether a particular injury
causes an employee to become disabled for work, and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.6 The Board will not require the Office 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 their
disability and entitlement to compensation.7
Under the Act the term “disability” means incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an

2

The Board notes that, following the August 24, 2006 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); Donald R. Gervasi, 57
ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

See Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); see also Nathaniel
Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, supra note 4. See also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

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

8

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006). Bobbie F. Cowart, 55 ECAB 746 (2004);
Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

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employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).11 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 factors identified by the claimant.12
ANALYSIS
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her disability for the period July 14 to
August 4, 2005 and the accepted conditions of left shoulder tenosynovitis, left shoulder
impingement, left lateral epicondylitis, cervical strain and left shoulder rotator cuff syndrome.13
The reports of Dr. Ryan do not provide a rationalized medical opinion explaining why she was
disabled for work for the claimed period due to her accepted conditions. The medical evidence
submitted is insufficient to meet appellant’s burden of proof.14
On July 14, 2005 Dr. Ryan noted that appellant had taken the prior three days off work
for a nonemployment-related condition. He noted her complaints of bilateral symptoms in the
C6 region and that her symptoms sounded radicular. Dr. Ryan completed a CA-17 which placed
appellant off work on the basis of her employment injuries. He subsequently released her to
return to work on August 5, 2005 with restrictions. This is the only evidence contemporaneous
to the period of claimed disability. However, Dr. Ryan did not provide sufficient rationale for
relating appellant’s disability to her accepted injury. He did not adequately explain the
nonemployment injury for which appellant was disabled immediately prior to his July 14, 2005
examination. On May 3, 2006 Dr. Ryan diagnosed cervical radiculopathy which he attributed to
her employment and the cause of her periods of total disability. In support of the conclusion that
appellant’s radiculopathy was employment related he noted that the last diagnosis he made was
parathesias, which he indicated was symptomatic of C6 nerve root compression. Dr. Ryan stated
that “[t]o say that she has a radiculopathy is the same thing as the C6 nerve root entrapment.”
With respect to appellant’s disability, he stated that appellant has suffered aggravation of her
condition which “required time off to treat.” Dr. Ryan indicated that “there are a number of
factors that can cause further compression of the C6 nerve root.” He did not explain how
appellant’s total disability for the period July 14 to August 4, 2005 was related to her
employment injuries. Dr. Ryan merely noted that, either appellant was disabled due to her
11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

12

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

13

Amelia S. Jefferson, supra note 4.

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

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employment injuries or that periodically, she would take time off due to her condition. The
Board has held that a medical opinion not fortified by medical rationale is of diminished
probative value.15 Dr. Ryan failed to provide sufficient explanation as to how appellant’s
disability was related to her accepted conditions. To the extent that Dr. Ryan attributed
appellant’s disability to a cervical radiculopathy, the Office has not accepted such condition as
causally related to her employment.
Dr. Ryan also provided conflicting opinions as to whether appellant’s disability for the
period July 14 to August 4, 2005 was employment related. On September 8, 2005 Dr. Ryan
opined that appellant “is incapable of working when she has these flare-ups, and therefore I took
her off work.” In another report of that date, Dr. Ryan stated that he “would not disagree at all
with your characterization” that appellant was not disabled for the period July 14 to August 4,
2005 due to her accepted work injuries. On October 13, 2005 Dr. Ryan stated that he misspoke
in his September 8, 2005 report as he had confused appellant’s vacation time with this period of
disability. However, he did not address appellant’s disability immediately prior to July 14, 2005
or explain her activities while on vacation prior to the period of claimed disability. Dr. Ryan’s
reports do not adequately address causal relationship or provide a rationalized medical opinion,
based on thorough medical history and examination, in which he fully explains how and why
appellant’s accepted left shoulder tenosynovitis, left shoulder impingement, left lateral
epicondylitis, cervical strain and left shoulder rotator cuff syndrome caused the disability.
Dr. Douthit’s July 18, 2006 second opinion report is not instructive on appellant’s period
of claimed disability. The Office did not request an opinion as to whether appellant was disabled
from July 14 to August 4, 2005.
Appellant had the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as a result of her employment injury. For the
reasons stated above, the Board finds that appellant failed to sustain her burden of proof in
establishing that she was totally disabled due to his accepted employment condition for the
period July 14 to August 4, 2005.16
CONCLUSION
The Board finds that appellant has not established that she was disabled for work and
entitled to wage-loss compensation for the period July 14 to August 4, 2005.

15

Mary A. Ceglia, 55 ECAB 626 (2004). See Brenda L. DuBuque, 55 ECAB 212 (2004); see also Willa M.
Frazier, 55 ECAB 379 (2004); David L. Scott, 55 ECAB 330 (2004).
16

See Fereidoon Kharabi, supra note 7. (The Board will not require the Office to pay compensation for disability
in the absence of any medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.)

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2006 is affirmed.
Issued: May 11, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West New York, NJ, Employer
__________________________________________

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

Docket No. 08-0003
Issued: April 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2007 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated November 6, 2006 and May 1, 2007 concerning his
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the schedule award decision.
ISSUE
The issue is whether appellant has established more than five percent left upper extremity
impairment and more than five percent right upper extremity impairment, for which she received
a schedule award.
FACTUAL HISTORY
On November 14, 2002 appellant, then a 30-year-old letter carrier, filed a claim for
employment-related carpal tunnel syndrome. The Office accepted her claim for bilateral carpal
tunnel syndrome and paid appropriate benefits, including time lost from work due to right carpal

tunnel release surgery on May 27, 2003 and on the left on September 26, 2003. Appellant
returned to full-time work on January 2, 2004.
On April 7, 2005 appellant filed a schedule award claim. In a November 22, 2004 report,
Dr. David Weiss, an osteopath, noted the history of injury, appellant’s subjective complaints, and
presented findings on examination. He opined that appellant reached maximum medical
improvement on November 22, 2004. Dr. Weiss found a positive Phalen’s sign of the left wrist
and hand and a perceived sensory deficit over the median nerve distribution of the right hand.
Based on the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), he opined that appellant had 34 percent permanent
impairment of the right arm and 3 percent impairment of the left arm. Impairment to the right
arm consisted of a 31 percent sensory deficit under Table 16-10, page 482 and Table 16-15, page
492 of the A.M.A., Guides and a 3 percent pain-related impairment under Table 18-1, page 574
of the A.M.A., Guides. Impairment to the left arm consisted of a three percent pain-related
impairment under Table 18-1, page 574 of the A.M.A., Guides. In a March 23, 2005 statement,
Dr. Mark Filippone, a Board-certified physiatrist, agreed with Dr. Weiss’ November 22, 2004
impairment rating.
On May 11, 2005 the Office referred the medical evidence to its Office medical adviser
to determine the extent of appellant’s permanent impairment to the right and left upper
extremities under the A.M.A., Guides. In a June 9, 2005 report, the Office medical adviser
agreed that appellant reached maximum medical improvement on November 22, 2004. Based on
Dr. Weiss’ evaluation, the Office medical adviser opined that appellant had five percent
impairment of the right arm and three percent impairment of the left arm. For the right arm, the
Office medical adviser stated that, under page 495 of the A.M.A., Guides, appellant was only
entitled to five percent impairment as Dr. Weiss indicated that appellant had a perceived and not
an objective sensory deficit over the median nerve distribution. He agreed that appellant only
had three percent impairment to the left arm based on pain under Table 18-1, page 574 of the
A.M.A., Guides.
Given the discrepancy between the impairment ratings of Dr. Weiss and the Office
medical adviser, the Office referred appellant to Dr. Paul A. Foddai, a Board-certified orthopedic
surgeon, for a second opinion. In a July 18, 2005 report, Dr. Foddai reviewed materials provided
by the Office and provided examination findings. He noted that appellant had persistent
subjective complaints. With regard to the left hand, Dr. Foddai found that appellant had a
normal range of motion, normal motor and normal sensory examination, as well as normal grip
strength with negative Phalen’s and negative Tinel’s signs. He opined that there was no
permanency due to the accepted left carpel tunnel diagnosis. On the right side, Dr. Foddai found
that appellant had no motor deficit but had nine percent impairment due to sensory deficit of the
median nerve. Under Table 16-5, page 492 of the A.M.A., Guides, he opined that appellant had
nine percent impairment due to involvement of the middle finger and five percent involvement
due to the index finger, which totaled 14 percent sensory impairment. Under Table 16-10a, page
482 of the A.M.A., Guides, Dr. Foddai opined that appellant had a Grade 3 or 60 percent sensory
deficit. Multiplying the 14 percent sensory impairment with the 60 percent sensory deficit, he
found that appellant had 8.4 or 9 percent impairment due to sensory deficit of the median nerve.
In a September 15, 2005 report, an Office medical adviser reviewed Dr. Foddai’s report and

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concurred that appellant had a zero percent impairment to the left arm and nine percent
impairment to the right arm.
The Office determined that a conflict of medical opinion existed between the impairment
evaluations of Dr. Weiss and Dr. Foddai. On October 5, 2005 the Office referred appellant, the
medical record and a statement of accepted facts, to Dr. Thomas E. Helbig, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a November 1, 2005 report,
Dr. Helbig reviewed the medical evidence of record. He opined that appellant reached maximum
medical improvement in early 2004, when she was cleared to return to work. On examination,
appellant had no sensory deficit of the right hand, but diminished sensation in the second, third
and fourth fingers and thumb on the left hand. Dr. Helbig noted that, although both Dr. Weiss
and Dr. Foddai found worsening symptoms on the right side, he was unable to explain the
discrepancy. He opined that there were inconsistent sensory findings on his examination when
compared to the examinations of Dr. Weiss and Dr. Foddai.
Based on abnormal
electrodiagnostic studies obtained and with no motor deficits noted by either him or the other
treating physicians postoperatively, he assigned a five percent permanent impairment to the right
upper extremity and a five percent permanent impairment to the left upper extremity under page
495, paragraph 2 of the A.M.A., Guides. Dr. Helbig further noted that, on page 494 of the
A.M.A., Guides, additional impairment values were not given for decreased motion or decreased
grip strength. In a November 5, 2006 report, the Office medical adviser concurred with
Dr. Helbig’s impairment findings.
In a November 6, 2006 decision, the Office granted schedule awards for five percent
permanent impairment to her left upper extremity and a five percent permanent impairment to
her right upper extremity. The period of the award ran for 31.20 weeks from November 1, 2005
to June 7, 2006. The decision was sent to the addresses provided by both appellant and her
attorney of record.
In a February 2, 2007 letter, appellant requested reconsideration. Counsel asserted that
he first received the Office’s November 6, 2006 decision on January 26, 2007. He asserted that
Dr. Helbig’s opinion was flawed as he did not provide range of motion measurements for the
wrist and fingers, did not measure for atrophy of the wrists, and did not explain his sensory
findings or his application of the A.M.A., Guides. Counsel requested that the Office either
request a supplemental report from Dr. Helbig or arrange for a second impartial impairment
evaluation.
On April 11, 2007 the Office requested that the Office medical adviser review the
medical evidence. On April 11, 2007 the Office medical adviser stated that Dr. Helbig had
adequately explained how he arrived at the five percent impairment rating for each upper
extremity in accordance with the A.M.A., Guides. The Office medical adviser noted that range
of motion was not to be considered in carpal tunnel syndrome which affects the distal median
nerve at the wrist, as it does not cause range of motion loss. He further noted that Dr. Helbig
found inconsistent sensory findings on the left side as compared to Dr. Weiss and Dr. Foddai,
with no motor deficits in either hand. He opined under page 495, paragraph 2 of the A.M.A.,
Guides, five percent impairment applies where the preoperative electromagnetic test was
positive.

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By decision dated May 1, 2007, the Office found that appellant had not established that
she sustained greater than five percent permanent impairment of the right arm or five percent
permanent impairment of the left arm. The Office noted that the weight of the medical evidence
rested with Dr. Helbig. It also found that there was no evidence to support that a copy of the
Office’s November 6, 2006 decision was not mailed to the attorney in the ordinary course of
business and, thus, no basis to reissue the prior decision.
On appeal, appellant’s attorney argues that Dr. Helbig’s November 1, 2005 report is
flawed and is insufficient to carry the weight of the medical opinion evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. For consistent results and to ensure equal justice, under the law to
all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed.) has been adopted by the Office for
evaluating schedule losses.3
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.4 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.5
ANALYSIS
A conflict in medical evidence was created between Dr. Weiss, appellant’s physician,
who found 34 percent right upper extremity impairment and 3 percent left upper extremity
impairment, and Dr. Foddai, an Office referral physician, who found that she had 9 percent right
upper extremity impairment and no left upper extremity impairment. The Office referred
appellant to Dr. Helbig for an impartial evaluation.

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

See 20 C.F.R. § 10.404; see also David W. Ferrall, 56 ECAB 362 (2005).

4

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

5

Manuel Gill, 52 ECAB 282 (2001).

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Dr. Helbig found that appellant had five percent impairment rating to both the right and
left upper extremities. He stated that his examination did not reveal any motor deficits but
revealed diminished sensation on the left side as opposed to the right side, which Dr. Weiss and
Dr. Foddai had reported. Dr. Helbig advised that he could not explain why appellant now had
diminished sensation on her left side. He noted that, since appellant had no motor deficits
postoperatively but had an abnormal electrodiagnostic studies preoperatively, he would assign a
five percent impairment rating to both upper extremities under option two on page 495 of the
A.M.A., Guides. Dr. Helbig explained that the A.M.A., Guides, at page 494, did not provide for
impairment based on loss of motion or grip strength in cases of entrapment neuropathies. He
found no basis under the A.M.A., Guides on which to attribute any greater impairment.
The Office medical adviser reviewed Dr. Helbig’s evaluation and noted that Dr. Helbig
properly applied the A.M.A., Guides in determining appellant’s permanent impairment. The
Board has held that, while an Office medical adviser may review the opinion of an impartial
medical specialist in a schedule award case, the resolution of the conflict is the specialist’s
responsibility.6 In this case, the Office medical adviser indicated that Dr. Helbig’s findings and
conclusions were in conformance with the A.M.A., Guides. Dr. Helbig assigned the five percent
impairment rating for both the right and left upper extremities respectively based on the fact that
appellant exhibited normal motor deficits postoperatively but abnormal electrodiagnostic studies
preoperatively. The Board notes that this is consistent with option two on page 495 of the
A.M.A., Guides which allow for an impairment rating not to exceed five percent in situations
where a person has normal sensibility and abnormal sensory with optimal recovery time after
surgical decompression. The medical adviser confirmed, as did Dr. Helbig, that the A.M.A.,
Guides generally preclude ratings based on loss of motion or grip strength in carpal tunnel
cases.7
The Board finds that Dr. Helbig’s opinion is well rationalized and based on a proper
factual background. It is to be given special weight and establishes that appellant has no more
than five percent permanent impairment of each arm. As the evidence does not establish more
than five percent impairment for both the right and the left upper extremities respectively, the
Board will affirm the Office’s finding on appellant’s permanent impairment.
Counsel asserted that he did not timely receive the Office’s November 6, 2006 decision. A
review of the evidence reveals that the Office mailed its November 6, 2006 decision to the
address of record provided by both appellant and her attorney.8 There is no record of either
appellant or her attorney changing addresses and there is no indication that the November 6,
2006 decision was returned to the Office as being undeliverable. The Board has found that, in
the absence of evidence to the contrary, a letter properly addressed and mailed in the due course
of business, such as in the course of the Office’s daily activities, is presumed to have arrived at
6

See, e.g., Willie C. Howard, 55 ECAB 564 (2004) (where the Office medical adviser concurred that the
impartial medical specialist’s impairment rating was appropriate under the fifth edition of the A.M.A., Guides).
7

Cristeen Falls, 55 ECAB 420 (2004).

8

The Office’s regulations provide that a copy of the decision shall be mailed to the employee’s last known
address and also to any designated representative. 20 C.F.R. § 10.127.

5

the mailing address in due course.9 This is known as the “mailbox rule.” The Board finds that it
is presumed that the Office’s November 6, 2006 decision arrived at both appellant’s home and
her attorney’s office in due course.
CONCLUSION
The Board finds that appellant does not have more than five percent impairment to her right
and the left upper extremities.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2007 and November 6, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See Nelson R. Hubbard, 54 ECAB 156, 157 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cranston, RI, Employer
__________________________________________

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

Docket No. 17-1387
Issued: October 24, 2017

Case Submitted on the Record

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

JURISDICTION
On June 7, 2017 appellant filed a timely appeal from an April 14, 2017 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 her burden of proof to establish a left ankle or back
injury causally related to the accepted February 21, 2017 employment incident.
FACTUAL HISTORY
On February 23, 2017 appellant, then a 61-year-old retail window clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 21, 2017 she sprained her left ankle when
she fell while turning to the left to place a package in a cart.
1

5 U.S.C. § 8101 et seq.

In an emergency department report dated February 21, 2017, Dr. Shihab Ali, an
emergency medicine physician, diagnosed a likely ankle sprain, but no acute fracture. He noted
that appellant reported pain after a fall while working at the employing establishment, which
gradually worsened over the course of several hours.
In a diagnostic report dated February 21, 2017, Dr. Heather I. Gale, a Board-certified
radiologist, examined the results of an x-ray of appellant’s left ankle. She noted impressions of
soft tissue swelling over the dorsal mid-foot along with irregularity of the anterior navicular
bone. Dr. Gale noted that this irregularity may be related to prior post-traumatic, inflammatory,
or degenerative arthropathy.
Appellant submitted several notes from nurses and physician assistants dated between
February 21 and March 1, 2017.
In a duty status report dated February 28, 2017, Dr. P. Wilfredo Canchis, a specialist in
internal medicine, diagnosed appellant with lower back sprain and left-sided sciatica due to her
left ankle sprain. He recommended that she not return to work.
By letter dated February 28, 2017, the employing establishment controverted appellant’s
claim. It contended that her claim should be rejected because she had a preexisting condition,
she was unable to accurately describe the injury, and there was no unsafe condition involved.2
By report dated March 7, 2017, Dr. Canchis diagnosed a low back sprain, sprain of the
left ankle, and sciatica. He noted that she returned for a follow-up regarding her February 21,
2017 left ankle and back injuries. In a duty status report dated March 7, 2017, Dr. Canchis
continued to recommend that appellant not return to work.
By letter dated March 13, 2017, OWCP informed appellant of the evidence needed to
establish her claim. It advised her that reports from nurse practitioners and physical therapists
did not qualify as reports from physicians under FECA, and thus would not qualify as evidence
in support of her claim. OWCP noted that appellant had submitted insufficient evidence to
establish either the factual or medical portions of her claim, and afforded her 30 days to submit
additional evidence. It also requested that she respond to a claim development questionnaire.
In a report dated March 23, 2017, Dr. John K. Czerwein, a Board-certified orthopedic
surgeon, diagnosed a left ankle sprain, lumbar strain/sprain, and exacerbated/aggravated lumbar
spondylosis/stenosis. He noted that she described falling on February 1, 2017, injuring her left
ankle, and aggravating underlying lumbar pain. Dr. Czerwein opined, “It is within a reasonable
degree of medical certainty that [appellant’s] left ankle pain as well as some back pain is related
to the work incident that occurred on February 1, 2017, and I think her back has been
exacerbated and/or aggravated.”

2

By letter dated March 3, 2017, a coworker described the claimed incident. She stated that, while she was
helping a customer, she heard a noise and a customer asking appellant, “Are you all right?” The coworker turned to
see that appellant had fallen. Appellant denied to the coworker that she had tripped. Asking appellant whether she
was okay, appellant responded “yes” and “we’ll see how it goes later.”

2

On April 10, 2017 Dr. Canchis noted that appellant described working on February 21,
2017 at the employing establishment, when she tripped and fell, landing on her lower back and
twisting her left ankle. He noted that her symptoms were improving. Dr. Canchis opined, “I
believe within a reasonable degree of medical certainty that the incident described on
February 21, 2017 was the cause of the symptoms presenting to this office on February 28 and
March 8, 2017.”
By decision dated April 14, 2017, OWCP denied appellant’s claim for compensation. It
found that she had not submitted a sufficiently well-rationalized medical report substantiating
that her diagnosed conditions were caused or aggravated by the February 21, 2017 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury4 was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is
causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that she actually experienced the employment incident at the time, place,
and in the manner alleged. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a
personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.6
The claimant has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
3

Supra note 1.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

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the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and a
compensable employment incident.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
Appellant alleged that on February 21, 2017 she sustained injury as a result a fall while
turning to the left to place a package in a cart. The Board finds that, while she has established
that this incident occurred as alleged, appellant has not submitted sufficient rationalized medical
evidence to establish that the incident caused or aggravated her diagnosed medical conditions.
In a report dated March 23, 2017, Dr. Czerwein diagnosed a left ankle sprain, lumbar
strain/sprain, and exacerbated/aggravated lumbar spondylosis/stenosis. He noted that she
described falling on February 1, 2017, injuring her left ankle and aggravating her underlying
lumbar pain. Dr. Czerwein opined, “It is within a reasonable degree of medical certainty that
[appellant’s] left ankle pain as well as some back pain is related to the work incident that
occurred on February 1, 2017, and I think her back has been exacerbated and/or aggravated.”
On April 10, 2017 Dr. Canchis noted that appellant described working on February 21,
2017 at the employing establishment, when she tripped and fell, landing on her lower back and
twisting her left ankle. He noted that her symptoms were improving. Dr. Canchis opined, “I
believe within a reasonable degree of medical certainty that the incident described on
February 21, 2017 was the cause of the symptoms presenting to this office on February 28 and
March 8, 2017.”
Dr. Czerwein’s March 23, 2017 opinion on causation is highly speculative as he notes
that appellant’s employment duties “may have” aggravated her symptoms.12 As such, his report
is of diminished probative value on the issue of causal relationship.

8

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila,
57 ECAB 642, 649 (2006).
10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

11

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

See D.F., Docket No. 17-0135 (issued June 5, 2017).

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Moreover, Dr. Canchis’ April 10, 2017 report contains a correct history of injury and a
conclusion that the employment incident was the cause of the symptoms appellant presented.
Again, he did not provide a medical explanation of how the claimed work event caused or
aggravated her claimed conditions. As such, Dr. Canchis’ April 10, 2017 report is insufficient to
establish causal relationship between the event of February 21, 2017 and appellant’s claimed
conditions.13
The remainder of the medical evidence does not contain any opinions from a physician as
to the cause of appellant’s claimed conditions. Dr. Ali diagnosed a likely ankle sprain, but
offered no opinion regarding causal relationship. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.14 In a diagnostic report Dr. Gale interpreted the results of an x-ray of
appellant’s ankle. However, diagnostic reports which offer no opinion regarding causal
relationship are of limited probative value.15
Appellant also submitted documents from nonphysicians. Nurse practitioners and
physician assistants do not qualify as physicians under FECA and, therefore, their medical
reports have no probative value.16
As such, the Board finds that appellant failed to submit sufficient evidence to establish
her claim for a work-related left ankle or back injury causally related to the accepted
February 21, 2017 employment incident. Appellant failed to submit a clear and rationalized
opinion from a qualified physician relating her diagnoses to the accepted incident of
February 21, 2017.17
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.

13

Id.

14

Willie M. Miller, 53 ECAB 697 (2002).

15

E.B., Docket No. 17-0305 (issued July 10, 2017).

16

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) “physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills,
39 ECAB 572, 575 (1988). Healthcare providers such as licensed clinical social workers, nurses, acupuncturists,
physician assistants, and physical therapists are not considered physicians under FECA and their reports and
opinions do not constitute competent medical evidence to establish a medical condition, disability, or causal
relationship. See D.F., Docket No. 17-0135 (issued June 5, 2017).
17

Supra note 11.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left ankle or
back injury causally related to the accepted February 21, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
NATURAL RESOURCE CONSERVATION
SERVICE, Madisonville, TN, Employer
__________________________________________

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Appearances:
Roy P. Neuenschwander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-80
Issued: March 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 15, 2008 appellant, through his attorney, filed a timely appeal from an
August 4, 2008 merit decision of the Office of Workers’ Compensation Programs denying his
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on March 9, 2006, as alleged.
FACTUAL HISTORY
On March 26, 2007 appellant, then a 62-year-old soil conservation technician, filed a
traumatic injury claim (Form CA-1) alleging that on March 9, 2006 at 5:07 p.m. he was involved
in an automobile accident when his vehicle was hit by a second vehicle that pulled in front of
him. He claimed that the impact caused his body to lunge forward and that he was held in by his
seatbelt, resulting in upper and lower back pain, radiating down the right leg. At the time of the

accident, appellant was driving to a Blount County Soil Conservation District nominating
committee and board meeting, scheduled for 5:30 p.m. and 6:30 p.m., respectively. The
employing establishment controverted the claim, arguing that the incident occurred after his
regular duty hours, that appellant was not approved to attend the meeting and that he was in his
personal vehicle at the time of the accident.
In letters dated May 8, 2007, the Office requested that both appellant and the employing
establishment provide additional information regarding the alleged incident.
In a May 17, 2007 letter, the employing establishment replied that appellant was not
advised to attend the board meeting or paid compensatory time to attend. It enclosed a series of
e-mails dated September 23, 2005 through March 8, 2007. In a September 23, 2005 e-mail,
Charles Roberts, a supervisor at the employing establishment, provided appellant notice of an
area personnel meeting on November 22, 2005, to which all employees were invited to attend.
In an e-mail dated September 26, 2005, appellant requested permission from Mr. Roberts to
drive an employing establishment vehicle to board meetings, noting that he had driven his
personal vehicle to the evening board meetings for three and a half years. In a reply e-mail dated
September 26, 2005, Mr. Roberts responded that appellant, as a soil conservationist technician,
was not required to attend board meetings. This e-mail was carbon copied to appellant’s
immediate supervisor, Fred Walker. In an e-mail dated March 7, 2007, Mr. Walker stated that he
did not approve appellant to work from 6:00 p.m. to 6:30 p.m. on March 9, 2006.
The employing establishment also enclosed a copy of appellant’s time sheet dated
March 5 through 18, 2006, certified by Mr. Walker. According to the time sheet, appellant’s
tour of duty hours for March 9, 2006 were 8:00 a.m. to 4:30 p.m., however, actual clock hours
were 8:00 a.m. to 6:30 p.m.
In a May 26, 2007 statement, appellant alleged that on the date of the accident he left
work to attend the Blount County nominating committee and board meeting scheduled for
5:30 p.m. He left from work and took a direct route following his supervisor. Appellant
believed that his supervisor required his attendance and three people witnessed his supervisor
telling him it was time to go. He stated that he attended most of the previous board meetings,
was never told not to attend and previously drove a vehicle owned by the employing
establishment to the meetings. Appellant claimed that his attendance at the meeting benefited
the employing establishment by building a good relationship between the agency, the board and
local land owners in the county and that he received credit time for several of the meetings he
attended. He enclosed a copy of the accident report and a time sheet for the period March 5
through 18, 2006.
By decision dated June 5, 2007, the Office found that appellant was not injured while in
the performance of duty. It noted that appellant did not provide any evidence to establish that his
attendance at the meeting was required.1
1

In a letter dated June 16, 2008, the Office contended that because appellant did not submit any medical
evidence, the June 5, 2007 decision would be modified to deny the claim on the basis of fact of injury instead of
performance of duty. On July 11, 2008 appellant, through his attorney, submitted a series of medical records dated
March 21, 2006 through February 6, 2007.

2

On June 9, 2008 appellant requested reconsideration. In an affidavit dated June 3, 2008,
appellant stated that he was required to attend the Blount County meetings as part of his job. He
had attended the meetings for over three years as part of his job and received compensatory time
from his employer. Appellant claimed that he attended the meetings for the purpose of
coordinating state and federal resource best management practices in the county, as well as to
update the committee on ongoing projects. He enclosed a map reflecting his route of travel from
the premises of the employing establishment to the Blount County meeting.
In a June 3, 2008 affidavit, John Davis, chairman of the Blount County Soil Conservation
District, stated that appellant had attended the Blount County meetings over the past three years,
that his attendance was helpful and that he expected him to attend. He expected appellant to be
present at the meeting scheduled for March 9, 2006.
In a statement dated July 17, 2008, appellant, through his attorney, contended that
Mr. Walker specifically knew he was attending the meeting and that they talked while at the
employing establishment premises prior to driving to the meeting in separate vehicles. He
contended that the injury occurred on the most immediate and direct route to the meeting and
that he believed his presence at the meeting was a substantial part of the services for which he
was hired, as his job duties partly consisted of coordinating state and federal projects in the
county.
By decision dated August 4, 2008, the Office denied modification, finding that appellant
was not advised to attend the Blount County meeting on March 9, 2006, was not paid
compensatory time and was advised by Mr. Walker that he was not required to attend the
meeting.
LEGAL PRECEDENT
Congress, in providing a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relationship.2 Instead, Congress
provided for the payment of compensation for personal injuries sustained while in the
performance of duty. The phrase performance of duty has been interpreted by the Board to be
the equivalent of the commonly found prerequisite in workers’ compensation law of arising out
of and in the course of employment. In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place where he or she may
reasonably be expected to be in connection with the employment; and (3) while
he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto.”3
2

Janet M. Abner, 53 ECAB 275 (2002).

3

Christine Lawrence, 36 ECAB 422 at 424 (1985).

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The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work while going to or coming from work, are not
compensable.4 An exception to this rule applies where the employee uses the highway to do
something incidental to his employment, with the knowledge and approval of the employer.5
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.6
ANALYSIS
The issue is whether appellant sustained an injury in the performance of duty on March 9,
2006 at 5:07 p.m. while driving to a Blount County Soil Conservation District nominating
committee and board meeting. In the August 4, 2008 decision, the Office determined that,
because appellant attended the meetings voluntarily and was not paid compensation, the accident
occurred outside the performance of duty. The Board finds this case is not in posture for
decision.
The Office, in denying the claim, found that appellant was not compensated for his time
while traveling to and attending the Blount County meetings. However, this conclusion is not
wholly supported by the record. In a March 9, 2006 e-mail, Mr. Walker, appellant’s immediate
supervisor, stated that he did not authorize appellant to work from 6:00 p.m. to 6:30 p.m. on
March 9, 2006. However, the timesheet submitted by the employing establishment, and certified
by Mr. Walker, shows that appellant’s actual hours on March 9, 2006 were 8:00 a.m. to 6:30
p.m., which encompasses the time traveling to and attending the Blount County meeting. While
the hours worked outside the usual tour of duty are not reflected in the totals on the timesheet, it
is unclear whether appellant was compensated through credit time, as he alleges. Further,
appellant contended that he was compensated for attending the Blount County meetings for the
past three and a half years; however, the record is void of past timesheets that would either refute
or support this claim. Thus, the Board finds that it is unclear whether appellant was compensated
for attendance at the Blount County meetings, either on March 9, 2006 or for the three and a half
years prior.
The Board further notes that the mere fact that appellant attended the meeting voluntarily
or did not receive compensation would not necessarily preclude benefits. The Board has
previously looked to a variety of factors to determine whether an employee is considered to be in
the performance of duty while off the employing establishments’ premises. In Lindsay A.C.
Moulton,7 the Board focused on the benefit to the employing establishment arising out of the
4

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

5

Mary Margaret Grant, 48 ECAB 696 (1997).

6

Phyllis A. Sjoberg, supra note 4.

7

39 ECAB 434 (1988). See also Sondra J. Mills, 33 ECAB 1092 (1982).

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employee’s participation at a voluntary symposium, for which he was only granted annual leave
and no expenses were paid. The Board found that attendance at the symposium was an incident
of employment; however, his injury due to recreational skiing on the trip was not compensable.
Further, in Janet R. Landesberg,8 the Board looked to the nexus between the employing
establishment and the seminar to which appellant was traveling when she was injured in a car
accident, finding that the critical factor in the case included the degree of control that the
employing establishment exercised over the seminar and attendance thereof, including payment
for travel or other expenses, sponsorship or organization of the seminar and the authorization for
attendance.9
The Board finds that not only did the Office fail to consider this precedent when denying
appellant’s claim, but also did not sufficiently develop the evidence related to these factors. For
example, it is unclear the role of the employing establishment in sponsoring or organizing the
Blount County meetings. Further, Mr. Davis, the Chairman of the Blount County Soil
Conservation District, stated that he expected appellant to attend the meetings and that his
attendance was helpful at the meetings. However, it is unclear whether a relationship existed
between Mr. Davis and the employing establishment. Moreover, the employing establishment
never addressed the benefit, if any, of appellant’s attendance at the Blount County meetings,
despite appellant’s claims that he aided in coordinating state and federal resource best
management practices.
It is long established that proceedings under the Act are not adversarial in nature and the
Office is not a disinterested arbiter. While the claimant has the burden to establish entitlement
to compensation, the Office shares the responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government sources.10
The Board, therefore, finds this case is not in posture for decision as ambiguities remain
as to appellant’s compensation for attendance at the meeting, the benefit, if any, to the employing
establishment of appellant’s attendance and the degree of control the employing establishment
exercised over the meeting. The case is remanded for further proceedings consistent with this
decision to be followed by a de novo decision.
CONCLUSION
The Board finds this case is not in posture for a decision.

8

50 ECAB 538 (1999).

9

The Board found no such nexus in Landesberg.

10

Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the August 4, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
not inconsistent with this opinion.
Issued: March 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Algonac, MI, Employer
__________________________________________

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

Docket No. 19-0265
Issued: May 20, 2019

Case Submitted on the Record

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

JURISDICTION
On November 16, 2018 appellant filed a timely appeal from an October 30, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted March 17, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 30, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 7, 2018 appellant, then a 43-year-old part-time flexible clerk, filed a
traumatic injury claim (Form CA-1) alleging that on March 17, 2018 she injured her left knee
while in the performance of duty. She was unloading an all-purpose container of tub flats, and as
she grabbed a tub and turned to set it down, her left knee popped. Appellant indicated that her left
knee swelled and it hurt to bear weight. On the reverse side of the claim form, the employing
establishment did not indicate whether she stopped work, but listed September 7, 2018 as the date
she returned to work.
With her Form CA-1, appellant submitted a letter signed by physician assistant David
Slapyznski, indicating that she visited the Henry Ford Health System clinic on September 7, 2018
and checked a box marked “yes,” that the injury had occurred in the performance of duty.
In a development letter dated September 24, 2018, OWCP advised appellant of the need
for additional medical evidence in support of her claim for FECA benefits. It specifically requested
that she provide a narrative report from her attending physician, which included a diagnosis and a
medical explanation as to how the reported work incident either caused or aggravated a medical
condition. OWCP afforded appellant 30 days to submit the requested information.
In an attending physician’s report (Form CA-20) dated September 11, 2018, Dr. Eddie F.
El-Yussif, a Board-certified orthopedic surgeon, diagnosed left knee medial meniscus tear. He
indicated that he performed a physical examination and noted a positive McMurray’s test, posterior
pain, mild crepitus, and mild swelling.3 Dr. El-Yussif noted a March 17, 2018 date of injury when
appellant “twisted [her] knee while carrying a heavy tub of mail at work [and] noticed pain.” The
Form CA-20 also documented that an x-ray was performed, that she was given an injection, and
that she was prescribed physical therapy, a knee brace, and referred for a magnetic resonance
imaging scan. Dr. El-Yussif also noted that appellant had been advised that she could return to
work as of April 9, 2018. In response to question of whether he believed that her injury was caused
or aggravated by her employment, Dr. El-Yussif checked the box marked “Yes.”4
In a letter dated September 18, 2018, Mr. Slapyznski wrote that it was his opinion that
appellant could return to work, and reported that she visited the clinic that day.
By decision dated October 30, 2018, OWCP accepted that the March 17, 2018 incident
occurred as alleged and that a medical condition had been diagnosed. It denied the claim, however,
finding that causal relationship had not been established between the diagnosed condition and the
accepted March 17, 2018 employment incident.

3

Dr. El-Yussif initially examined appellant on April 10, 2018 and reexamined her on September 6, 2018.

4

Dr. El-Yussif also provided the same information in a September 11, 2018 authorization for examination and/or
medical treatment (Form CA-16), (Part B – Attending Physician’s Report). There is no indication of record that the
Form CA-16 was properly executed by the employing establishment for purposes of granting authorization for
treatment.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 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 sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.9 Generally, 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.10 The second component is whether the employment incident caused a
personal injury.11 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.12
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.13 Aphysician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.14 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

5

Supra note 1.

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); 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

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

12

J.P., supra note 6; L.T., supra note 10; Shirley A. Temple, 48 ECAB 404, 407 (1997).

13

E.M., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

14

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

3

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted March 17, 2018 employment incident.
The medical evidence of record does not contain a physician’s rationalized opinion on
causal relationship between the diagnosed left medial meniscus tear and the employment incident
of March 17, 2018. Dr. El-Yussif checked a box marked “yes” on the September 11, 2018
attending physician’s reports (Form CA-20 and CA-16) noting his opinion that appellant’s
condition had been caused or aggravated by her employment, but he did not provide rationale to
support his belief and opted to leave the explanation space blank. The Board has held that when a
physician’s opinion on causal relationship consists only of checking a box marked “Yes” to a form
question, without more by the way of medical rationale, that opinion has little probative value and
is insufficient to establish causal relationship.16 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.17 As Dr. El-Yussif did no more than check a box marked “Yes” to a
form question, his opinion on causal relationship is insufficient to meet appellant’s burden of
proof.18
The remaining medical records from Mr. Slapyznski are of no probative value, as a
physician assistant is not considered a “physician” as defined under FECA.19
For these reasons, the Board finds that the evidence of record is insufficient to establish
causal relationship between appellant’s left knee medial meniscus tear and the accepted March 17,
2018 employment incident.20

15

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

16

S.S., Docket No. 18-0950 (issued October 23, 2018); E.P., Docket No. 18-0194 (issued September 14, 2018).

17

Id.; J.P., supra note 6.

18

Id.; E.P., supra note 16.

19

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render
a medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
20

J.P., supra note 6; L.T., Docket No. 18-1603 (issued February 21, 2019).

4

Appellant may submit new evidence and/or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted March 17, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1518
Issued: May 7, 2013

Case Submitted on the Record

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

JURISDICTION
On November 2, 2012 appellant, through her attorney, filed a timely appeal from an
April 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On October 30, 2009 appellant, then a 42-year-old distribution sales associate, filed an
occupational disease claim alleging that she sustained a cervical spine injury as a result of heavy
lifting and other work-related duties. She stated that she first became aware that her condition
1

5 U.S.C. § 8101 et seq.

was caused or aggravated by her employment on September 24, 2009, when she learned the
results of a magnetic resonance imaging (MRI) scan.2
In an undated statement, appellant indicated that she had worked at the employing
establishment since July 3, 1986. Her normal duties included the distribution of mail, taking
loaded tubs of mail with flats to the carriers, taking loaded trays of lettered mail to the carriers,
unloading and reloading tractor trailers, pushing hampers, u-carts, skids and cages of mail to
distribution areas, casing mail, distributing box mail and parcels and window services. Appellant
was placed on light-duty pursuant to her previously-accepted claim for CTS. Modified work
duties included working in the key desk area (scanning accountable mail to the assigned carriers,
preparing accountable logs for the carriers, maintaining accountable records, parcels, letters, etc.,
answering the telephone and handling the redelivery of all mail for customers including parcels).
Appellant was responsible for retrieving various parcels for customers, which caused severe pain
in her upper extremities. A computerized axial tomography (CAT) scan showed that she had
herniated discs in her neck.
Appellant submitted an October 5, 2009 disability slip from Dr. Steven Rosen, a Boardcertified physiatrist, who treated her for chronic upper extremity pain. Dr. Rosen stated that she
was unable to work due to a herniated disc. The record contains a report of a September 24,
2009 CAT scan of the cervical spine.
In a letter dated November 20, 2009, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim and advised her to submit additional evidence,
including a physician’s rationalized report with a diagnosis and an opinion explaining how her
diagnosed condition was causally related to identified employment activities.
By decision dated January 20, 2010, OWCP denied appellant’s claim, finding that the
evidence was insufficient to establish that the events had occurred as alleged and that the record
did not contain any medical evidence that provided a diagnosis that could be connected to the
claimed events.
On October 4, 2010 appellant requested reconsideration.
The record contains reports dated December 13, 2006 through March 22, 2007 from
Dr. Richard J. Mandel, a Board-certified orthopedic surgeon, who diagnosed RSD. Appellant
submitted notes from Dr. Thomas Fagan, a chiropractor, for the period September 29, 2010
through January 11, 2012.
Dr. Fagan’s notes consistently reflected that appellant was
experiencing neck pain and contained a diagnosis of cervical subluxation.
Appellant submitted a January 9, 2007 report from Dr. Rosen, who provided a history of
injury and treatment and examination findings. Dr. Rosen noted that she had a two-year history
2

On August 8, 2006 appellant had filed an occupational disease claim (File No. xxxxxx758) alleging that she
sustained injuries to her right hand and elbow as a result of repetitive right hand movements while casing mail for 24
years. OWCP accepted her claim for right carpal tunnel syndrome (CTS); dorsal ganglion cyst of the right hand;
and reflex sympathetic dystrophy (RSD) of the upper limb. Pursuant to the Board’s order dated November 26, 2012
in File No. xxxxxx758, OWCP consolidated case File Nos. xxxxxx758 and xxxxxx072 under master
File No. xxxxxx758.

2

of pain in her right shoulder, hand and elbow. He described appellant’s employment activities,
which included loading trucks and sorting letters. Dr. Rosen noted a prior diagnosis of CTS, for
which she underwent decompression on September 19, 2006. After surgery, appellant’s pain
intensified and she developed constant pain in her right arm radiating toward the elbow and neck.
Dr. Rosen noted that she had not had an MRI scan of the cervical spine. Physical examination
revealed tenderness over the shoulder and over the cervical facet joints. There was decreased
sensation in the right C6, C7 and C8 nerve distributions. Dr. Rosen diagnosed chronic regional
pain syndrome and indicated that he might ask for an MRI scan of the cervical spine to rule out a
herniated disc contributing to her diagnosed condition.
In a statement dated October 15, 2010, appellant contended that the constant lifting,
loading and unloading of heavy equipment contributed to her cervical injury. She noted that her
light-duty position did not commence until April 10, 2007.
Appellant submitted a September 20, 2010 report from Dr. Michael McCoy, a Boardcertified family practitioner, who stated that she had been working for the employing
establishment for 24 years. Her job included pushing and pulling pallets, casing mail and
loading heavy equipment off the trucks. For several months prior to September 24, 2009,
appellant had been developing worsening neck and upper extremity pain and weakness into her
right lower extremity. She was on limited-duty due to her CTS, RSD and neck pain. Appellant
had a spinal cord stimulator implanted. She developed CTS from casing and sorting the mail as
well as RSD and chronic neck pain. Appellant subsequently ruptured the herniated disc in her
neck and on September 24, 2009, had a CAT scan performed, which documented a disc
herniation at C5-6. She underwent cervical fusion and bone allograft. Examination revealed
minimal extension of the cervical spine. There was palpable spasm and tenderness over the
cervical paravertebral and trapezius muscles and significant weakness in the right upper
extremity. Grip, pinch and apposition strength was decreased on the right. Dr. McCoy
diagnosed cervical disc herniation at C5-6; right upper extremity radiculopathy; right lower
extremity myelopathy secondary to disc herniation at C5-6; and status post cervical fusion. He
opined within a reasonable degree of medical certainty that appellant’s condition was a direct
result of her work injuries. Dr. McCoy explained that there were no degenerative changes of the
cervical spine that would cause her to have disc herniation. He further opined that appellant was
misdiagnosed with RSD and CTS, which he concluded were related to the cervical disc
herniation.
By decision dated January 12, 2011, OWCP denied modification of its January 20, 2010
decision. The claims examiner found that the evidence failed to establish that factors of
appellant’s employment caused her current herniated disc condition.
On January 30, 2011 appellant requested reconsideration. She also requested that her
prior claim (File No. xxxxxx758) be expanded to include a herniated disc at C5-6.
In a January 12, 2011 report, Dr. McCoy diagnosed cervical sprain/strain with
aggravation of preexisting injury, status post fusion and bilateral cervical radiculopathy. He
opined that appellant was disabled due to her work injury. Dr. McCoy also stated that her
current cervical condition was related to the original work injury, which was misdiagnosed.

3

In a March 3, 2011 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence submitted was insufficient to warrant merit review.
On September 27, 2011 appellant again requested reconsideration.
Appellant submitted follow-up reports from Dr. McCoy for the period January 31
through October 3, 2011, all of which reiterated his opinion that her cervical sprain/strain and
cervical radiculopathy were causally related to her work activities. In a July 26, 2011 report,
Dr. McCoy stated that she had experienced neck pain since 2004. Noting that appellant had
originally worked in a heavy-duty capacity, he indicated that she had suffered a disc herniation
sometime during her job activities, but that it was never diagnosed because she did not undergo
an MRI scan.
In an October 3, 2011 narrative report, Dr. McCoy provided a history of injury and
treatment and diagnosed a large disc herniation at C5-6 and a smaller disc herniation at C3-4, as
well as cervical radiculopathy. He noted that appellant was initially diagnosed with CTS and
RSD. Dr. McCoy opined, however, that these diagnoses were incidental to her herniated discs,
as her pain radiated from her neck to her right shoulder, down her arm, into her elbow and
crossed into her hands and fingers. CTS reportedly does not present this way, but rather would
have presented with pain at the wrist, which radiated into the hand or pain at the wrist, radiating
up the forearm to the elbow. RSD is a diagnosis of exclusion, meaning it is given after all other
diagnoses have been exhausted and should have triggered the physicians to perform an MRI scan
for cervical spine. An MRI scan of appellant’s cervical spine, which is standard of care in
treatment of people with pain radiating down from the upper part of the extremities to the distal
part, would have immediately shown that she had a disc herniation in her cervical spine.
Dr. McCoy opined that her diagnosed cervical condition was solely due to her work activities. In
follow-up reports from January 31 through October 3, 2011, he reiterated his opinion that
appellant’s cervical condition was causally related to her work activities.
By decision dated April 11, 2012, OWCP denied modification of the January 12, 2011
decision. The claims examiner found that the factual evidence did not establish the specific
employment factors alleged to have caused appellant’s condition and that the medical evidence
was insufficient to establish a new occupational disease. He advised her that if she felt that job
factors other than those that led her to file her previous claim, caused her cervical spine
condition, she must clearly describe those job factors, in detail and the medical evidence must
support that those job factors resulted in her cervical spine condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the

4

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a claim includes a physician’s rationalized opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under FECA has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship. However, it is well established that proceedings under FECA are not
adversarial in nature and while the claimant has the burden of establishing entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.6
On January 9, 2007 Dr. Rosen provided a history of injury and treatment, noting that
appellant had been experiencing cervical, shoulder and arm pain for approximately two years.
He described her employment activities, which included loading trucks and sorting letters.
Examination revealed tenderness over the cervical facet joints and decreased sensation in the
3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id. See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see
also Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, id.; Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

right C6, C7 and C8 nerve distributions. Dr. Rosen diagnosed chronic regional pain syndrome
and indicated that he might ask for an MRI scan of the cervical spine to rule out a herniated disc
contributing to her diagnosed condition. On October 5, 2009 he stated that appellant was unable
to work due to a herniated disc. As Dr. Rosen did not provide an opinion on the cause of her
cervical condition, it is of limited probative value on that issue. The report, however, supports
appellant’s claim that her cervical condition existed as early as 2005 and that she was engaged in
heavy employment duties.
Dr. McCoy opined that appellant’s cervical disc condition resulted from work activities
over a 24-year period. He gave a history of her condition and indicated that he had reviewed
appellant’s medical records and test results. On September 20, 2010 Dr. McCoy stated that
appellant had been working for the employing establishment for 24 years. He reflected an
understanding of her job requirements and the nature of her job duties, which included pushing
and pulling pallets, casing mail, and loading heavy equipment off the trucks. Dr. McCoy noted
that appellant was placed on limited duty following the acceptance of her prior claim due to her
CTS and RSD, which she developed from repetitive duties of casing and sorting the mail. He
diagnosed a disc herniation at C5-6 pursuant to a September 24, 2009 MRI scan, which he
attributed directly to her heavy work activities. Dr. McCoy explained that there were no
degenerative changes of the cervical spine that would cause her to have disc herniation.
On October 3, 2011 Dr. McCoy diagnosed a large disc herniation at C5-6 and a smaller
disc herniation at C3-4, as well as cervical radiculopathy. He opined that appellant’s diagnosed
CTS and RSD were incidental to her herniated discs, as her pain radiated from her neck to her
right shoulder, down her arm, into her elbow and crossed into her hands and fingers. CTS
reportedly does not present this way, but rather would have presented with pain at the wrist,
which radiated into the hand or pain at the wrist, radiating up the forearm to the elbow. RSD is a
diagnosis of exclusion, meaning it is given after all other diagnoses have been exhausted and
should have triggered the physicians to perform an MRI scan for cervical spine. An MRI scan of
appellant’s cervical spine, which is the standard of care in treatment of people with pain radiating
down from the upper part of the extremities to the distal part, would have immediately shown
that she had a disc herniation in her cervical spine. Dr. McCoy opined that her diagnosed
cervical condition was solely due to her work activities.
Dr. McCoy’s reports did not provide a full explanation as to how appellant’s employment
activities caused or aggravated her cervical condition. In all of his reports, however, he did
consistently opine that her heavy duties, which included pushing and pulling pallets, casing mail
and loading heavy equipment off the trucks, caused her herniated disc and radicular conditions.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that she sustained an employmentrelated cervical condition and are not contradicted by any substantial medical or factual evidence
of record. OWCP found that her physicians did not seem to have a clear understanding of her
work duties or her physical restrictions. The Board notes, however, that OWCP failed to provide
her physicians with a statement of accepted facts, which delineated her job functions and
restrictions over the course of her employment. While the reports are not sufficient to meet
appellant’s burden of proof to establish her claim, they raise an uncontroverted inference

6

between her claimed conditions and the identified employment factors and are sufficient to
require OWCP to further develop the medical evidence and the case record.7
OWCP found that appellant had alleged that her cervical condition arose from the same
job functions that led to her prior claim, which was accepted for CTS and RSD. The Board notes
that in her August 8, 2008 occupational disease claim, she alleged that she sustained injuries to
her right hand and elbow as a result of repetitive right hand movements while casing mail for 24
years. In her October 30, 2009 claim, however, appellant alleged that she sustained a cervical
condition due to heavy lifting and other work-related duties. She described in detail the job
activities that she believed contributed to her cervical injury, which included loading and
unloading trucks and pushing and pulling heavy hampers. The Board finds that appellant has
claimed a new injury due to employment activities other than those that led her to file her
previous claim.
On remand, OWCP should prepare a statement of accepted facts that includes a detailed
employment history, job descriptions for each position held, specific functions performed by
appellant in each position and the restrictions imposed by her treating physicians. It should
submit the statement of accepted facts to her treating physician or to a second opinion examiner,
in order to obtain a rationalized opinion as to whether her current cervical condition is causally
related to factors of her employment, either directly or through aggravation, precipitation or
acceleration.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained a cervical injury in the performance of duty.

7

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, supra note 5; see also Jimmy A.
Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: May 7, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8