United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, WARNER ROBINS
POST OFFICE, Warner Robins, GA, Employer
__________________________________________

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

Docket No. 20-0712
Issued: November 10, 2020

Case Submitted on the Record

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

JURISDICTION
On February 11, 2020 appellant filed a timely appeal from a January 13, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On September 7, 2019 appellant, then a 58-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced lower right leg pain due to factors of her
federal employment. She indicated that she felt pain when carrying packages to a customer’s door,
1

5 U.S.C. § 8101 et seq.

and the pain worsened as the day continued. Appellant noted that she first became aware of her
condition and first realized its relation to factors of her federal employment on August 28, 2019.
She stopped work on September 6, 2019.
In a September 7, 2019 medical note, Jonathan Kent, a certified nurse practitioner,
provided work restrictions pending results from a bone scan. A bone scan report of even date,
performed by Dr. Timothy R. Stapleton, a Board-certified orthopedic surgeon, demonstrated
anterior shin splints.
In a September 18, 2019 medical note, Dr. Stapleton diagnosed right tibial stress fracture
and advised appellant to remain off work.
In a September 26, 2019 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how her work activities caused, contributed to, or aggravated her claimed medical
condition. It also enclosed a questionnaire for her completion which posed various questions
regarding her work duties. In a separate development letter of even date, OWCP also requested
that the employing establishment provide additional information, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements and a copy of an official
position description. It afforded both parties 30 days to provide the requested evidence.
In a September 7, 2019 medical report, Mr. Kent noted that appellant typically walked six
to eight miles per day for her work. He reported that appellant developed right anterior lower leg
pain in the distal third of the lower leg. Mr. Kent noted that her pain was initially worse with
flexion and extension of the foot, but was getting progressively worse since August 20, 2019. He
diagnosed shin splints and tibialis anterior tendinitis.
A September 11, 2019 bone scan report by Dr. L. Daniel Strawn, a Board-certified
radiologist, demonstrated a subtle area of asymmetric tracer accumulation in the lower right
anterior leg. Dr. Strawn noted that the uptake on the bone scan report appeared to be more likely
in the lower anterior leg soft tissues than the tibia itself.
In a September 18, 2019 medical report, Dr. Stapleton indicated that he had not seen
appellant following a right knee arthroscopy in 2018. He noted that she reported that she began
experiencing pain in her right shin area since approximately August 20, 2019, and that she was no
longer able to walk six to eight miles a day that she typically walked. Dr. Stapleton diagnosed
right tibial stress fracture and ordered physical therapy. He indicated that appellant’s lower leg
condition was work related.
The employing establishment, in an October 1, 2019 letter, controverted appellant’s claim
asserting that her injury occurred outside of the employing establishment as she provided no
medical documentation stating that her injury occurred on the job and failed to notify her
supervisor of her injury for 11 days. It further noted that she also had not provided a time and
place of her injury.
In an October 2, 2019 medical report, Steven Kelham, a certified physician assistant, noted
that appellant returned for a follow-up for right lower leg pain. He indicated that appellant
performed a lot of physical labor for her work, including walking 6 to 10 miles each day, lifting
2

heavy boxes, and loading trucks. Mr. Kelham noted that appellant was off work since
September 7, 2019. He diagnosed right lower leg stress fracture.
In an October 2, 2019 medical note, Dr. Stapleton again diagnosed right tibial stress
fracture and advised that appellant could return to work on October 7, 2019. In an attending
physician’s report (Form CA-20) of even date, he again diagnosed right tibial stress fracture and
placed appellant on light-duty work. Dr. Stapleton noted the date of injury as August 28, 2019
and checked a box marked “Yes” indicating that her diagnosed condition was work related. In a
duty status report (Form CA-17) of even date, he reported that appellant noticed pain in her lower
right leg while carrying packages from her truck to a door. Dr. Stapleton again diagnosed right
tibial stress fracture and advised that appellant could return to work on October 7, 2019 with
restrictions.
In an October 4, 2019 response to OWCP’s development questionnaire, appellant indicated
that the factors of her employment that she believed contributed to her condition included
repeatedly squatting and lifting heavy packages, climbing in and out of a long life vehicle (LLV)
to load packages, as well as, walking up to 50 pounds of packages from her LLV to a door of
business or homes on uneven surfaces. She explained that she loaded and unloaded, and then
walked with packages for approximately three hours per day, performing about 160 dismounts
each day, which required constantly stepping down from and back into her LLV. Appellant noted
that she often walked on uneven surfaces for at least one hour every day. She further explained
that her only activities outside of her work were volunteering at a fellowship for a clerical work,
light house cleaning, and cooking.
In an October 9, 2019 medical report, Dr. Stapleton indicated that appellant was still
recovering from her right tibial stress fracture and repeated that appellant’s condition was work
related. He noted that appellant had walked between 6 to 10 miles per day while working at the
employing establishment. Dr. Stapleton explained that right tibial stress fracture typically took a
long time to heal, noting that her preexisting intra-articular damage from 2013 might have slowed
down her recovery. He additionally diagnosed pain in lower limb. In a medical note of even date,
Dr. Stapleton further diagnosed pain in the right leg and indicated that appellant could return to
work on October 23, 2019 without restrictions.
In an undated statement, appellant’s supervisor, B.D., indicated that she conducted an
investigative interview with appellant on September 7, 2019. During this interview, appellant
alleged that she started experiencing pain in her right lower leg while she was carrying packages
on August 28, 2019. B.D. noted that appellant waited days before reporting her injury and failed
to respond to several questions including, “how, when, where, and what had happened to her leg.”
She indicated that appellant had explained that her injury was not a result of an accident, but rather
was an occupational injury caused by work on uneven surfaces and stress over time. B.D. noted
that appellant continued to work for 11 days following the development of her condition without
reporting her injury. She claimed in conclusion that appellant was not injured on the job, but
instead injured herself outside of the employing establishment.
On October 11, 2019 the employing establishment submitted a rural carrier position
description, which included: sorting, receiving, and signing for mail; loading mail in a vehicle;

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delivering mail to customers along a prescribed route and on a regular schedule by a vehicle; and
picking up mail from customers’ roadside boxes.
By decision dated January 13, 2020, OWCP denied appellant’s occupational disease claim
finding that the evidence of record was insufficient to establish that the alleged events occurred as
described or that she sustained a diagnosed medical condition. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.6 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the identified employment
factors.7
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed.8

2

Supra note 1.

3

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

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

20 C.F.R. § 10.5(q).

7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

8
T.W., Docket No. 18-0788 (issued July 22, 2019); J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A.
Facey, 55 ECAB 217 (2004).

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ANALYSIS
The Board finds that appellant has met her burden of proof to establish fact of injury.
Appellant claimed that she developed a lower right leg condition due to performing
repetitive work duties. She asserted that her duties included repeatedly squatting and lifting heavy
packages, climbing in and out of an LLV to load packages, as well as, carrying packages weighing
up to 50 pounds from her LLV on uneven surfaces. Appellant contended that she performed her
work duties for many hours every day, performing about 160 dismounts per day. Although she
reported to her supervisor that she first noticed pain in her lower right leg while carrying packages
on August 28, 2019, she explained that her injury was not traumatic, but rather an occupational
injury being caused by walking on uneven surfaces and stress over time.
The Board finds that the evidence of record is sufficient to establish that appellant’s work
duties included repeatedly lifting heavy packages, loading and unloading an LLV, and walking on
uneven surfaces to deliver packages, as well as picking up mail or packages from customers’
roadside boxes. The Board notes that she was consistent in reporting the essential nature of her
work duties and the employing establishment has not disputed her description of the type of duties
she performed, but rather disputed whether she sustained a traumatic injury while in the
performance of her duty. The Board has held that an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.9 The employing establishment presented evidence
showing that appellant did, in fact, perform the types of job tasks as alleged, albeit not to the same
extent as alleged. Therefore, the Board finds that appellant’s allegations regarding the nature of
her work duties have not been refuted by strong or persuasive evidence and there are no
inconsistencies sufficient to cast serious doubt on the type of duties she alleged she performed.10
The Board further finds that appellant has submitted sufficient medical evidence to
establish a medical diagnosis in connection with her alleged employment injury. In a series of
medical reports Dr. Stapleton diagnosed a tibial stress fracture in connection with appellant’s
claimed employment injury. The case record also demonstrates diagnoses shin splints and tibialis
anterior tendinitis.
Therefore, the case shall be remanded to OWCP to determine whether there is causal
relationship between the accepted factors of her federal employment and the diagnosed medical
conditions.11 After this and other such further development as may be deemed necessary, OWCP
shall issue a de novo decision on the merits of this claim.

9

See V.J., Docket No. 19-1600 (issued March 13, 2020); Allen C. Hundley, 53 ECAB 551 (2002).

10

See generally J.T., Docket No. 18-1170 (issued May 19, 2020); T.A., Docket No. 19-1525 (issued March 4, 2020);
J.C., Docket No. 18-1803 (issued April 19, 2019); L.S., Docket No. 13-1742 (issued August 7, 2014).
11

T.A., id.

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CONCLUSION
The Board finds that appellant has met her burden of proof to establish fact of injury, but
that the case is not in posture for decision on the issue of causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2020 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: November 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 08-1104
Issued: November 7, 2008

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated January 3, 2008. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determination.
ISSUE
The issue is whether appellant has more than a 20 percent permanent impairment of his
right upper extremity, for which he received a schedule award.

FACTUAL HISTORY
On December 27, 2005 appellant, then a 58-year-old letter carrier, sustained pain in the
right shoulder and back as he closed the door of his vehicle in the performance of duty.1 He
stopped work on December 28, 2005 and returned on January 3, 2006. The Office accepted the
claim for sprain/strain of the right rotator cuff. Appellant underwent an authorized right shoulder
arthroscopy, subacromial decompression and arthroscopic resection of the distal right clavicle on
February 23, 2006. He returned to regular duty on April 20, 2006 and received appropriate
compensation benefits.
In a May 3, 2006 report, Dr. Thomas L. Gautsch, a Board-certified orthopedic surgeon,
advised that appellant could perform his usual job and had reached maximum medical
improvement.
On December 29, 2006 appellant filed a Form CA-7 claim for a schedule award. In a
June 23, 2006 report, Dr. Walter Wheelhouse, a Board-certified orthopedic surgeon, reviewed
appellant’s history and provided findings on examination. For right shoulder range of motion, he
indicated that appellant had 110 degrees of flexion, 50 degrees of extension, 90 degrees of
abduction, 40 degrees adduction, 50 degrees internal rotation and 70 degrees external rotation.
Dr. Wheelhouse noted that there was no evidence of symptom magnification and a positive
impingement sign for the right shoulder. He referred to Table 16-27 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and opined
that appellant had impairment of 10 percent to his right upper extremity for resection arthroplasty
to his distal right clavicle.2 Dr. Wheelhouse referred to Figures 16-40, 16-43 and 16-46 and
determined that appellant had 5 percent impairment for loss of flexion, 4 percent impairment for
loss of abduction, 2 percent impairment for loss of internal rotation and opined that this would
result in an 11 percent impairment for decreased range of motion.3 He referred to Table 16-35
and advised that appellant had six percent impairment of the right upper extremity due to
decreased flexion strength based on a Grade 4/5.4 Dr. Wheelhouse noted that six percent
impairment of the right upper extremity would equal four percent whole person impairment. He
added that 11 percent impairment for decreased range of motion would equate to 7 percent whole
person impairment and 10 percent impairment for the resection arthroplasty would equal
6 percent whole person impairment. Dr. Wheelhouse explained that the A.M.A., Guides
provided an additional impairment for pain and hand dominance and advised that appellant
would be entitled to three percent for pain.5 He combined the whole person components of the

1

Appellant has a separate claim for a June 25, 2004 injury, which the Office accepted for bilateral dog bites of
the lower extremities, left rotator cuff tear and right tibia neuropathy. In that claim, the Board affirmed the Office’s
denial of appellant’s schedule award claim for scarring or disfigurement to his legs. Docket No. 06-788 (issued
September 28, 2006). The claim for the June 25, 2004 injury is not presently before the Board.
2

A.M.A., Guides 506 (5th ed. 2001) (hereinafter A.M.A., Guides).

3

Id. at 476, 477, 479.

4

Id. at 510.

5

Id. at 435, 584.

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various impairment ratings and concluded that appellant had 19 percent whole person
impairment. Dr. Wheelhouse found that appellant had reached maximum medical improvement.
In a March 20, 2007 report, an Office medical adviser utilized the A.M.A., Guides and
referred to Tables 16-40, 16-43 and 16-46.6 He noted that appellant’s surgical procedures
included a right shoulder subacromial decompression, mini open rotator cuff repair and resection
arthroplasty of the distal right clavicle (Mumford procedure). The Office medical adviser
determined that appellant had 11 percent impairment for loss of range of motion by adding the
values of 5 percent for 110 degrees for forward elevation, 4 percent for 90 degrees of forward
elevation and 2 percent for 50 degrees of internal rotation. He found 10 percent impairment for
the resection arthroplasty surgery. The Office medical adviser noted that Dr. Wheelhouse had
found additional impairment for weakness and dominance; however, he referred to section 16.8a
of the A.M.A., Guides 508, which provides that decreased strength cannot be rated in the
presence of decreased motion, painful conditions, deformities or absence of parts that prevent
effective application of maximum force. He used the Combined Values Chart to combine
11 percent impairment for loss of motion with 10 percent impairment for surgery to total
20 percent impairment to the right upper extremity.7 The Office medical adviser advised that
appellant reached maximum medical improvement on June 23, 2006.
On April 20, 2007 the Office granted appellant a schedule award for 20 percent
permanent impairment of the right lower extremity. The award covered a period of 62.4 weeks
from June 23, 2006 to September 2, 2007.
On May 17, 2007 appellant requested a hearing, which was held on October 30, 2007.
By decision dated January 3, 2008, the Office hearing representative affirmed the
April 20, 2007 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act8 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.9 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.10 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.11
6

See supra note 4.

7

A.M.A., Guides 604.

8

5 U.S.C. §§ 8101-8193.

9

5 U.S.C. § 8107.

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

20 C.F.R. § 10.404.

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The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.12 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.13
ANALYSIS
In the instant case, Dr. Wheelhouse appellant’s treating physician and the Office medical
adviser were in agreement regarding the extent of appellant’s entitlement to a schedule award for
loss of range of motion and his arthroscopy. However, they were in disagreement regarding
whether appellant was entitled to an additional impairment for loss of strength. Moreover,
Dr. Wheelhouse provided a whole person impairment rating. Appellant is entitled to an
impairment of 10 percent to his right upper extremity for his distal right clavicle resection
arthroplasty surgery. The Board finds that Table 16-2714 provides that an impairment of
10 percent is warranted as a result of the aforementioned surgery. Appellant’s right shoulder
impairment due to loss of range of motion was based on Figures 16-40, 16-43 and 16-46.
Dr. Wheelhouse found 110 degrees of flexion, 50 degrees of extension, 90 degrees of abduction,
40 degrees adduction, 50 degrees internal rotation and 70 degrees for external rotation.15 The
Board notes that, according to Figure 16-40,16 110 degrees of forward flexion is five percent
impairment and 90 degrees of forward elevation is four percent impairment according to Figure
16-43.17 Similarly, 50 degrees of internal rotation is an impairment of two percent according to
Figure 16-46.18 Thus, the Board notes that both physicians properly added the ratings and
determined that appellant had 11 percent impairment for loss of range of motion.
The Board notes that appellant is not entitled to the additional rating of six percent
impairment for decreased flexion strength and three percent impairment for pain and hand
dominance as provided by Dr. Wheelhouse. As to decreased flexion strength under Table 16-35,
the A.M.A., Guides, provide that decreased strength cannot be rated in the presence of decreased
motion, painful conditions, deformities or absence of parts that prevent effective application of
maximum force. Loss of strength may be rated separately if such a deficit has not been
considered adequately by other rating methods. An example of this situation would be loss of
12

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
13

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

14

A.M.A., Guides 506.

15

Supra note 3.

16

A.M.A., Guides 476.

17

Id. at 477.

18

Id. at 479.

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strength caused by a severe muscle tear that healed leaving “a palpable muscle defect.” If the
rating physician determines that loss of strength should be rated separately in an extremity that
presents other impairments, “the impairment due to loss of strength could be combined with the
other impairments, only if based on unrelated etiologic or pathomechanical causes. Otherwise,
the impairment ratings based on objective anatomic findings take precedence.”19
Dr. Wheelhouse did not provide any basis that would warrant additional impairment under this
section of the A.M.A., Guides. Regarding right hand dominance, the Board has held that the Act
makes no distinction between the right or left hand as to the amount of compensation payable.20
Appellant is not being entitled to an additional impairment for hand dominance.
To the extent that Dr. Wheelhouse referred to Chapter 18 to award an additional
impairment due to pain, the Board notes that Chapter 18 is not to be used to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides. Office procedures state that
a separate pain calculation under Chapter 18 is not to be used in combination with other methods
to measure impairment due to sensory pain as outlined in Chapter 13, 16 and 17 of the fifth
edition of the A.M.A., Guides.21 Thus, an additional award for pain would not be warranted.
The Board further notes that appellant was not entitled to a schedule award based on
whole person impairment. It is well established that schedule awards are not payable for whole
person impairment.22 While the A.M.A., Guides provide rating systems for both individual body
parts and whole person impairment, the Act defines impairment of specific members and
functions of the body. Therefore, any whole person impairment rating must be properly
converted to a rating of a member, function or organ of the body as listed under the schedule.
The Board finds that, under the Combined Values Chart,23 the 10 percent impairment for
the arthroscopy and the 11 percent impairment for loss of range of motion, total 20 percent
impairment to the right upper extremity.
The Board finds that there is no other medical evidence of record, based upon a correct
application of the A.M.A., Guides, to establish that appellant has more than a 20 percent
permanent impairment of the right upper extremity.

19

See id. at 508, section 16.8a.

20

See Andrew B. Poe, 27 ECAB 510 (1976); see also Robed R. Kuehl, 13 ECAB 77-78 (1961); Isidoro Riviera,
12 ECAB 348 (1961).
21

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at section 18.3(b); T.H., 58 ECAB ____ (Docket No. 06-1500, issued
January 31, 2007).
22

See Robert Romano, 53 ECAB 649 (2002); John Yera, 48 ECAB 243 (1996).

23

Supra note 7.

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CONCLUSION
The Board finds that appellant does not have more than a 20 percent impairment of his
right upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated January 3, 2008 is affirmed.
Issued: November 7, 2008
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sequim, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1393
Issued: January 19, 2012

Oral Argument November 17, 2011

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 25, 2011 appellant, through her attorney, filed a timely appeal of a December 15,
2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision terminating her
compensation benefits on the grounds that she refused suitable work. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective June 11, 2010 on the grounds that she refused an offer of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
This case has previously been before the Board on appeal. On October 2, 2001 appellant,
then a 39-year-old rural mail carrier, filed a notice of occupational disease alleging that she
1

5 U.S.C. § 8101 et seq.

developed repetitive strain of her right arm and shoulder and right rotator cuff strain due to
factors of her federal employment. By decision dated January 8, 2002, OWCP accepted her
claim for right shoulder and upper arm strain.
OWCP proposed to terminate appellant’s compensation benefits on July 12, 2007 and
finalized this decision on October 25, 2007 based on the report of an impartial medical specialist,
Dr. William Thieme, a Board-certified orthopedic surgeon. In its October 1, 2008 decision,2 the
Board found that Dr. Thieme’s report was not supported by medical reasoning and was not
entitled to the weight of the medical evidence; thus, OWCP had not met its burden of proof to
terminate appellant’s compensation benefits. The Board reversed the October 27, 2007 OWCP
decision. The facts and circumstances of the case as set forth in the Board’s prior decision are
adopted herein by reference.
Appellant’s attending physician, Dr. Margaret Forgette, a physician Board-certified in
physical medicine and rehabilitation, provided work restrictions on August 25, 2009 and
indicated that appellant could not reach above the shoulder and that she could operate a motor
vehicle at work or drive to work for only one hour each. She also restricted appellant’s pushing,
pulling and lifting.
The employing establishment offered appellant a limited-duty position on
November 20, 2009. Appellant stated that she neither accepted nor refused this position on
November 20, 2009. Dr. Forgette completed a note on November 18, 2009 and stated that
appellant had developed left shoulder pain with no injury or trauma. She diagnosed right
shoulder strain, impingement or repetitive strain injury and new left shoulder pain and limited
range of motion consistent with impingement or tendinitis. Dr. Forgette stated that she would
like to review the proposed modified position description and recommended a gradual return to
full-time duties.
OWCP provided Dr. Forgette with the offered position on December 4, 2009. In a note
dated December 14, 2009, Dr. Forgette stated that the position description was not in sufficient
detail for her to understand the physical activities of the job. She again noted that appellant’s left
shoulder pain and loss of range of motion were interfering with the use of that upper extremity.
Dr. Forgette recommended further left shoulder treatment.
In a letter dated December 23, 2009, OWCP requested that the employing establishment
more fully explain the actual physical activities entailed in the modified work position. On
January 5, 2010 Steve Allen, the postmaster, provided a letter detailing the requirements of each
duty. On March 15, 2010 Dr. Forgette responded and provided further restrictions. She stated,
“Please note, [appellant] is currently dealing with other health issues that might affect her ability
to return to work. Please confer with her other treating physicians regarding those conditions.”
The employing establishment offered appellant a second light-duty position on April 14,
2010 which required no reaching above the shoulder, up to 1 hour of lifting between 5 and 10
pounds, up to 1 hour of pushing and pulling with no overhead work and 4 hours of work per day.
Appellant neither accepted nor declined this position. OWCP referred this position to
2

Docket No. 08-540 (issued November 24, 2008).

2

Dr. Forgette on April 14, 2010. In a report dated April 15, 2010, Dr. Forgette opined that
appellant’s right shoulder condition permitted her to perform the duties of the offered position.
She stated, “However, [appellant] is currently being treated for left frozen shoulder by Dr. Dirk
Gouge in Port Angeles. This condition might affect her ability to return to work at this time, but
you would need to check with Dr. Gouge about that.”
In a letter dated April 20, 2010, OWCP stated that the light-duty position was suitable
work and that the position was currently available. It noted Dr. Forgette’s comments regarding
appellant’s left shoulder and stated that there was no evidence that this condition impacted
appellant’s ability to perform the duties of the offered position. OWCP allowed 30 days for a
response and informed appellant of the penalty provisions of 5 U.S.C. § 8106(c)(2).
In a letter dated May 19, 2010, counsel responded and provided work restrictions
regarding appellant’s left shoulder. He stated that appellant could not perform the offered
position based on these restrictions. Dr. Gouge, an osteopath, completed a work restriction
evaluation on May 11, 2010 and indicated that appellant could not use her left upper extremity.
He restricted her to no reaching, no reaching above the shoulder, no twisting, no repetitive
movements of the wrists and elbows as well as no pushing, pulling, lifting or climbing.
Dr. Gouge also indicated that appellant could operate a motor vehicle at work for one and onehalf hours and drive to and from work for one and one-half hours.
OWCP provided appellant with notice on May 26, 2010 that the reasons provided for
refusing the offered position were not considered valid as Dr. Gouge did not provide objective
findings supporting the given restrictions. It allowed appellant 15 days to accept the offered
suitable work position and informed her that if she refused her wage loss and schedule award
benefits would be terminated.
By decision dated June 11, 2010, OWCP terminated appellant’s compensation benefits in
accordance with section 8106(c) of FECA (5 U.S.C. § 8106(c)), effective that date.
Appellant requested an oral hearing before an OWCP hearing representative on
July 1, 2010. At the oral hearing on October 19, 2010 counsel argued that appellant established a
left shoulder condition which had arisen since the compensable injury and which disabled her
from her offered position. Appellant testified that she had a frozen left shoulder and could not
lift her left arm more than 45 degrees making it difficult to restock packing supplies.
Following the oral hearing, appellant submitted a series of progress notes from Dr. Gouge
beginning January 21, 2010 diagnosing left shoulder pain due to adhesive capsulitis. He
attributed her shoulder condition to overusing her left shoulder due to her right shoulder injury.
Dr. Gouge indicated that appellant had limited range of motion of the left shoulder and
recommended physical therapy as well as a cortisone injection. He also indicated that she was to
undergo thyroid surgery in the next week. On March 4, 2010 Dr. Gouge noted that appellant
completed three weeks of physical therapy with no real improvement. He diagnosed left
shoulder adhesive capsulitis. Dr. Gouge provided appellant with a cortisone injection on
April 13, 2010. He examined her on May 11, 2010 for her frozen left shoulder and found
restricted range of motion. In a note dated July 6, 2010, Dr. Gouge diagnosed left shoulder
adhesive capsulitis and stated that appellant had no significant gains with therapy. On

3

October 21, 2010 he stated that she was significantly impaired on the left side and had not made
progress with physical therapy. Dr. Gouge again diagnosed left shoulder adhesive capsulitis.
By decision dated December 15, 2010, the hearing representative found the medical
records did not include a rationalized medical opinion establishing that appellant was unable to
perform the offered position of modified rural carrier due to her frozen left shoulder. She
concluded that appellant had refused an offer of suitable work and that OWCP had properly
terminated her compensation benefits.
LEGAL PRECEDENT
It is well settled that once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.3 As OWCP in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), it must establish that appellant refused an
offer of suitable work. Section 8106(c) of FECA4 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee is not entitled to compensation. Section 10.517 of the applicable regulations5 provide
that an employee who refuses or neglects to work after suitable work has been offered or secure
for the employee, has the burden of showing that such refusal or failure to work was reasonable
or justified, and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation. To justify
termination of compensation, OWCP must show that the work offered was suitable and must
inform appellant of the consequences of refusal to accept such employment.6 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.7 It is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.8
ANALYSIS
OWCP accepted appellant’s claim for right shoulder and upper arm strain. The
employing establishment offered her a modified work position on April 14, 2010 which required
no reaching above the shoulder, up to one hour of lifting between 5 and 10 pounds, up to one
hour of pushing and pulling with no overhead work and four hours of work per day. Appellant’s
attending physician, Dr. Forgette, approved this position in regard to appellant’s right upper
extremity on April 15, 2010. However, she noted left shoulder pain beginning on November 18,
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

5 U.S.C. § 8106(c)(2).

5

20 C.F.R. § 10.517(a).

6

Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

7

Stephen A Pasquale, 57 ECAB 396, 402 (2006).

8

Richard P. Cortes, 56 ECAB 200 (2004).

4

2009 and on April 15, 2010 stated that Dr. Gouge was providing treatment for appellant’s left
shoulder and that this condition could prevent her from performing the offered position.
OWCP informed appellant that the offered position was suitable on April 20, 2010 and
noted that appellant had provided no medical evidence regarding her left shoulder. It allowed 30
days for a response. Appellant responded on May 19, 2010 and submitted a work restriction
evaluation completed by Dr. Gouge on May 11, 2010 indicating that appellant was unable to use
her left arm to perform repetitive movements of wrists and elbows or any reaching, pushing,
pulling or lifting. As the April 14, 2010 position description required up to one hour of lifting
between 5 and 10 pounds and up to one hour of pushing and pulling with no overhead work, this
report suggests that appellant’s refusal to work was reasonable or justified based on her
subsequently arising left upper extremity condition. Furthermore, following the oral hearing,
appellant also submitted further medical evidence diagnosing adhesive capsulitis of the left upper
extremity and indicating that she had limited of motion of the left shoulder. These reports from
Dr. Gouge establish a diagnosed left shoulder condition and indicate that this condition could
prevent appellant from performing the duties of the offered position.
The Board finds that in this case OWCP should have considered appellant’s nonworkrelated condition and its effect on her ability to perform the duties of the April 14, 2010 position
deemed suitable work. OWCP did not develop this aspect of the case by requesting further
clarification from Dr. Gouge as to whether appellant’s left arm condition would prevent her from
perform the specific duties of the April 14, 2010 position. It, therefore, did not have an
appropriate basis on which to terminate appellant’s compensation for refusal to accept suitable
work.9
CONCLUSION
The Board finds that the December 15, 2010 decision of OWCP must be reversed as it is
not supported by the medical evidence. Consequently, OWCP did not meet its burden of proof
to terminate compensation effective June 11, 2010.

9

Janice S. Hodges, 52 ECAB 379, 381 (2001); Donna M. Stroud, 51 ECAB 264 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.W., claiming as widow of L.W., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1396
Issued: April 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 25, 2011 appellant filed a timely appeal from a December 1, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for death
benefits. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the employee’s death on July 23, 2008 was causally related to his
accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In an October 6, 2010
decision, the Board found that the case was not in posture for a decision as to whether the
employee’s death was causally related his employment. The Board noted that, on February 4,
2008, less than six months before the employee’s death, an OWCP medical adviser reviewed the
record and recommended the employee’s referral to an internist specializing in infectious
diseases to further develop whether osteomyelitis was work related. The Board remanded the
case for referral of the case record and a statement of accepted facts to an appropriate medical
specialist for review and a rationalized opinion on whether the employee’s July 23, 2008 death
was contributed to by his federal employment. The Board directed OWCP to issue a de novo
decision after such development. The facts and history contained in the prior appeal are
incorporated by reference. Relevant prior evidence will be set forth as appropriate.3
In a March 29, 2004 hospital discharge report, Dr. Jigar Patel, a Board-certified internist,
noted that the employee was originally admitted for osteomyelitis and methicillin sensitive
staphylococcus aureus bacteremia secondary to his osteomyelitis. He noted that the employee
was thought to have contracted this from his history of intravenous (IV) drug abuse. Dr. Patel
noted that the employee was treated with IV antibiotics and prescribed nafcillin for six weeks.
He advised that pain service was involved with the employee’s back pain. In an addendum
related to the management of the employee’s condition, Dr. Patel advised that a magnetic
resonance imaging (MRI) scan revealed an abscess in the left psoas muscle and osteomyelitis in
the lumbar spine that seemed to envelop the lumbar intervertebral disc. He indicated that the
abscess was too small for drainage and it was determined that the employee “would just receive
IV antibiotics for the treatment of this abscess and the osteomyelitis.”
On August 11, 2007 the employee underwent a decompressive thoracic laminectomy
T8-12 and culture and drainage, which was performed by Dr. Wilbur C. Sanford, a treating
Board-certified neurosurgeon.
In a November 19, 2007 report, Dr. Sanford noted seeing the employee for postoperative
follow up. He explained that after his anterior cervical discectomy and fusion, the employee
developed “a terrible infection in his spine, an osteomyelitis. [The employee] developed a
transverse myelitis and I had to operate on him.” Dr. Sanford noted performing a decompressive
thoracic laminectomy from T8-12. He noted that the employee was “uncertain whether the
infection was totally cured, but he is stronger.”
In an October 7, 2008 report, the coroner, Dr. Steven Trenkle, a Board-certified
pathologist and clinical pathologist, listed the employee’s cause of death as an accident due to
“[c]omplications of chronic osteomyelitis of spine, years, due to blunt force injury of spine,
years. Contributing cause: excessive use of pain medication with probable intravenous injection
2

Docket No. 10-598 (issued October 6, 2010).

3

The employee, then a 24-year-old equipment mechanic, filed an occupational disease claim in 1987 that was
accepted for bilateral carpal tunnel syndrome, cervical herniation from C4-7 and radiculopathy. This other claim,
number xxxxxx552, has been combined with the claim presently before the Board.

2

of crushed oral medications.” The coroner further explained that “the extensive foreign body
pulmonary granulomata with birefringent crystals in perivascular location with multiple foreign
body giant cells are consistent with previous episodes of intravenous administration of crushed
oral medication.” He also noted that the “nonmedicinal ‘filler’ material used in the pills is
trapped by macrophagea as the blood passes through the lungs.” The coroner also added that the
“material is often birefringent under polarizing light and often leads to an extensive foreign body
granulomata, such as seen in this individual.”
Following the Board’s remand, OWCP on October 25, 2010 referred the file for a second
opinion, along with a statement of accepted facts, a set of questions and the medical record to
Dr. Steven Hwang, Board-certified in infectious diseases.
In a November 17, 2010 report, Dr. Hwang noted the employee’s history of injury and
treatment that included bilateral carpal tunnel syndrome and cervical disc disease. He noted that
the employee underwent carpal tunnel release surgeries bilaterally and anterior cervical
discectomy with fusion of C6-7 in November 2001. In June 2007, the employee underwent
another cervical spine surgery involving removal of his cervical plate at C6-7, along with
anterior cervical discectomy and fusion at C4-5. Dr. Hwang noted that the employee developed
osteomyelitis with epidural abscess in the lumbar spinal region at L2-3 with a psoas abscess in
March 2004 “with Methicillin-sensitive Staphylococcus aureus, that was treated with IV
antibiotics alone” and, “importantly, was attributed, according to Dr. Patel … the [employee’s]
‘history of IV drug abuse.’” He advised that, in August 2007, the employee was reported to have
an epidural abscess in T10-12 with discitis and destruction of the vertebral body requiring
emergency decompression of the thoracic area and drainage of purulent material from the area,
which grew Serratia marcescens. Dr. Hwang noted that the employee had “chronic, unresolving
osteomyelitis of his spinal vertebrae and, unfortunately, on July 2008, [he] was found dead in his
home.” He noted the autopsy report findings which included evidence of multiple pulmonary
granulomata with birefringent material consistent with injection of crushed oral medications.
Regarding whether the employee’s osteomyelitis was related to the accepted conditions,
Dr. Hwang advised that he was unable to find direct evidence that the patient’s osteomyelitis was
related to the injury. He attributed the condition to a “history of IV drug abuse.” Dr. Hwang
explained that it provided a possible origin for the employee’s spinal infection. He further noted
that vertebral osteomyelitis after spinal surgery usually occurred at the site of the actual surgery
or in the employee’s case, the cervical area, not the lumbar area. Dr. Hwang opined that the
“fact that the lumbar spine was the body area affected suggests a noncontiguous, hematogenous
(seeding) route of infection.” He opined that the use of IV drugs would serve to cause
bacteremia, which could then seed the lumbar spine with infecting bacteria. Dr. Hwang
explained that the diagnostic tests such as the MRI scan and computerized tomography (CT) scan
revealed no evidence that the cervical spine was ever infected. He also explained that there was
additional evidence that the IV drug abuse caused the bacteremia and thus seeded the lumbar
spine with bacteria. Dr. Hwang noted that the employee had “unequivocal pathologic finding on
autopsy of the multiple granulomas in the lungs that contained birefringent crystals.” He stated
that this latter “finding is pathognomonic of injection into the [employee’s] veins of crushed
materials (likely medicine…).” Dr. Hwang opined that there was a “strong clinical suggestion
that the injection of drug abuse was the cause of the lumbar osteomyelitis and that this was not
related to the conditions accepted on this claim.”

3

By decision dated December 1, 2010, OWCP denied the claim for compensation. It
found that the medical evidence did not demonstrate that the employee’s claimed medical
condition was related to the established work-related events.
LEGAL PRECEDENT
An award of compensation in a survivor’s claim may not be based on surmise, conjecture
or speculation or a claimant’s belief that the employee’s death was caused, precipitated or
aggravated by the employment.4 A claimant has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the employee’s death was causally
related to an employment injury or to factors of his employment. As part of this burden, she
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence.5
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.6
ANALYSIS
In the prior appeal, the Board remanded the case for OWCP to refer the matter for a
second opinion regarding whether the osteomyelitis diagnosed by Dr. Sanford was due the
employee’s accepted surgeries. This recommendation was based on the opinion of an OWCP
medical adviser, who suggested that an internist and expert in infectious diseases clarify this
matter.
OWCP referred the employee’s file to Dr. Hwang, Board-certified in infectious diseases,
for a second opinion. In a November 17, 2010 report, Dr. Hwang reviewed the employee’s
history of injury and treatment. Regarding whether the osteomyelitis was due to the employee’s
accepted injuries, he found that it was not due to the injuries but rather the “[employee’s] history
of IV drug abuse.” Dr. Hwang noted that vertebral osteomyelitis after spinal surgery usually
occurred at the site of the surgery which, in the employee’s case, was the cervical area and not
the lumbar area. He explained that the “fact that the lumbar spine was the body area affected
suggests a noncontiguous, hematogenous (seeding) route of infection.” Dr. Hwang opined that
4

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

5

Mary J. Briggs, 37 ECAB 578 (1986); Umberto Guzman, 25 ECAB 362 (1974).

6

Donna L. Mims, 53 ECAB 730 (2002).

4

the use of IV drugs served to cause bacteremia, which could then seed the lumbar spine with
infecting bacteria. He explained that diagnostic testing such as the MRI scan and CT scan
showed no evidence that the cervical spine was ever infected. Dr. Hwang explained that autopsy
findings supported that IV drug abuse caused bacteremia and thus seeded the lumbar spine with
bacteria, noting an “unequivocal pathologic finding on autopsy of the multiple granulomas in the
lungs that contained birefringent crystals.” He opined that this “finding is pathognomonic of
injection into the patient’s veins of crushed materials (likely medicine).” Dr. Hwang asserted
that there was a “strong clinical suggestion that the injection of drug abuse was the cause of the
lumbar osteomyelitis and that this was not related to the conditions accepted on this claim.” The
Board finds that OWCP properly relied on his opinion in finding that the employee’s
osteomyelitis was not due to the employee’s accepted surgery and, thus, his death was not caused
or contributed to by his employment. The Board finds that Dr. Hwang’s opinion represents the
weight of the evidence and OWCP properly denied the survivor’s claim.
The Board notes that the employee’s treating physician, Dr. Sanford, saw the employee
on November 19, 2007 and explained that after the authorized anterior cervical discectomy and
fusion, the employee developed “a terrible infection in his spine, an osteomyelitis” and
developed a transverse myelitis which necessitated Dr. Sanford operating on him. However,
Dr. Sanford did not explain or offer any specific opinion as to whether the osteomyelitis was due
to the employee’s accepted surgeries. He also offered no subsequent opinion on whether the
employee’s death was caused or contributed to by the accepted condition or surgery. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.7
Additionally, in a report dated October 7, 2008, the coroner, Dr. Trenkle, a Boardcertified pathologist and clinical pathologist, listed the cause of death as an accident due to
“[c]omplications of chronic osteomyelitis of spine, years, due to blunt force injury of spine,
years. Contributing cause: excessive use of pain medication with probable intravenous injection
of crushed oral medications.” This report also does not specifically attribute the employee’s
death to the accepted employment injury or surgery or otherwise explain how the cause of death
was employment related.8 There is no medical evidence specifically addressing how the
employee’s accepted conditions or authorized surgery caused or contributed to his death.
On appeal, appellant reiterated that the employee’s death was related to complications
from osteomyelitis and his pain medication. However, as noted above, the medical evidence
does not support that the osteomyelitis or the employee’s death was due the employee’s accepted
condition or surgery.9

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Dr. Patel’s March 29, 2004 report diagnosed staphylococcus bacteria secondary to his osteomyelitis.
advised that the employee was thought to have contracted this from his history of IV drug use.
9

He

Appellant may submit evidence or argument with a written request for reconsideration 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.

5

CONCLUSION
The Board finds that the employee’s death on July 23, 2008 was not causally related to
his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
M.M., Appellant
)
)
and
)
)
DEPARTMENT OF THE ARMY, U.S. ARMY
)
CORPS OF ENGINEERS, New Orleans, LA,
)
Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-473
Issued: June 19, 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 December 5, 2007 appellant filed a timely appeal from a September 6, 2007 decision
of the Office of Workers’ Compensation Programs which denied his request for a hearing and a
May 31, 2007 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant has more than five percent permanent impairment
of his right upper extremity for which he received a schedule award; and (2) whether the Office
properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On July 31, 2006 appellant, then a 48-year-old rigging worker, sustained injury to the tip
of his right pinky finger in the performance of duty. On October 17, 2006 the Office accepted

his claim for a crushing injury of the right pinky finger, traumatic amputation,1 partial, without
complication of the right pinky. Appellant received appropriate compensation benefits. On
December 21, 2006 he requested a schedule award.
In a December 14, 2006 report, Dr. Eric R. George, a Board-certified hand surgeon, noted
that appellant was four weeks past an osteotomy of the finger and excision of the nail plate. He
opined that appellant’s amputation of the distal interphalangeal joint of the small finger would
entitle appellant to 45 percent impairment of the small finger, which translated to 5 percent
impairment of the upper extremity and 3 percent of the whole person.
In a January 9, 2007 report, the Office medical adviser noted appellant’s history of injury
and treatment and advised that he had utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A., Guides). He indicated that
appellant’s condition was accepted for a crushing injury to right little finger and amputation of
right little finger and that appellant achieved maximum medical improvement on
December 14, 2006. Regarding the amputation of the right little finger through the distal
phalanx, the Office medical adviser referred to Figure 16-32 and determined that this would
warrant 45 percent impairment of the finger. He noted that according to Table 16-1,3 45 percent
of the finger was equivalent to 5 percent of the hand. The Office medical adviser referred to
Table 16-24 and opined that it translated to five percent right upper extremity impairment.
On May 31, 2007 the Office granted appellant a schedule award for five percent
impairment of the right upper extremity. The award covered a period of 15.6 weeks from
December 15, 2006 to April 30, 2007.
On August 17, 2007 the Office received a request for hearing from appellant. The
request was postmarked August 7, 2007.
By decision dated September 6, 2007, the Office denied appellant’s request for a hearing
on the grounds that the request was untimely. It found that he did not submit his request for an
oral hearing within 30 days of the Office’s May 31, 2007 decision and, therefore, he was not
entitled to a hearing as a matter of right. Additionally, the Office considered the matter in
relation to the issue involved and denied appellant’s request on the basis that the issue could
equally well be addressed through the reconsideration process.

1
2

Dr. Eric George performed surgery on November 15, 2006.
A.M.A., Guides 442.

3

Id. at 438.

4

Id. at 439.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act5 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.7 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS -- ISSUE 1
In the present case, appellant’s claim was accepted for crushing injury of the finger, right
pinky, traumatic amputation, partial without complication of the right pinky. The record
contains reports from appellant’s treating physician and the Office medical adviser. Both
physicians determined that appellant sustained five percent impairment of the right upper
extremity. In a December 14, 2006 report, Dr. George, appellant’s physician, opined that
appellant had five percent impairment of the arm due to his amputation of the distal
interphalangeal joint of the right little finger. He did not provide reference to the A.M.A.,
Guides in making his impairment rating.9 The Office medical adviser concurred with
Dr. George’s assessment of five percent impairment of the right arm.
The Board finds that the Office properly rated the impairment related to appellant’s right
pinky partial amputation. In a January 9, 2007 report, the Office medical adviser utilized the
A.M.A., Guides and referred to Figure 16-310 for the amputation of the right little finger through
the distal phalanx which provides 45 percent impairment. He referred to Table 16-1,11 and
advised that 45 percent of the finger was equal to 5 percent of the hand. The Office medical
adviser then referred to Table 16-212 and determined that this also represented five percent right
upper extremity impairment. The Board finds that the medical evidence establishes that
appellant has five percent permanent impairment of the right upper extremity.

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

9

Although Dr. George also expressed appellant’s impairment in terms of whole person impairment, schedule
awards are not payable for impairment of the whole person. See Tommy R. Martin, 56 ECAB 273 (2005).
10

A.M.A., Guides 442.

11

Id. at 438.

12

Id. at 439.

3

On appeal, appellant alleged that he had greater impairment and listed items that were
bothersome with regard to his injury. The medical record establishes that he has no more than
five percent permanent impairment of the right upper extremity.13
LEGAL PRECEDENT -- ISSUE 2
Section 8124 of the Act provides that a claimant is entitled to a hearing before an Office
representative when a request is made within 30 days after issuance of an Office final decision.14
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”15
Section 10.616(a) of Title 20 of the Code of Federal Regulations further provides, “A
claimant injured on or after July 4, 1966, who had received a final adverse decision by the
district Office may obtain a hearing by writing to the address specified in the decision. The
hearing request must be sent within 30 days (as determined by postmark or other carrier’s date
marking) of the date of the decision for which a hearing is sought.”16
The Office’s regulations provide that a request received more than 30 days after the
Office’s decision is subject to the Office’s discretion17 and the Board has held that the Office
must exercise this discretion when a hearing request is untimely.18
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing was postmarked August 7, 2007. The Board notes that
the request for a hearing was more than 30 days after the Office issued its May 31, 2007
decision. Appellant was not entitled to a hearing as a matter of right.
The Office also properly exercised its discretion in denying a hearing upon appellant’s
untimely request by determining that the issues could be equally well addressed by requesting
reconsideration and submitting new evidence. The only limitation on the Office’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are contrary to logic and deductions
13

A claimant may seek an increased schedule award if the evidence establishes that progression of an
employment-related condition, without new exposure to employment factors, has resulted in a greater permanent
impairment than previously calculated. Linda T. Brown, 51 ECAB 115 (1999).
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

20 C.F.R. § 10.616(a).

17

20 C.F.R. § 10.616(b).

18

Samuel R. Johnson, 51 ECAB 612 (2000).

4

from known facts. There is no evidence of record that the Office abused its discretion in denying
appellant’s request for a hearing under these circumstances.
CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment of
the right upper extremity for which he received a schedule award. The Board also finds that the
Office properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 6 and May 31, 2007 are affirmed.
Issued: June 19, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oshkosh, WI, Employer
__________________________________________

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

Docket No. 18-1182
Issued: January 9, 2019

Case Submitted on the Record

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

JURISDICTION
On May 22, 2018 appellant filed a timely appeal from a May 1, 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 over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee injury
causally related to the accepted February 17, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the May 1, 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 February 17, 2018 appellant, then a 52-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a left knee injury that day when her grippers got
caught while she was putting them on in the performance of duty. She noted that she fell on cement
and that she was unable to put weight on her left knee. Appellant stopped work and sought medical
attention that day.
In a partial February 17, 2018 return to work report -- emergency department/urgent care
note, Lisette C. Brown, a certified physician assistant, noted that appellant had fallen that day.
Initial encounter diagnoses of closed nondisplaced longitudinal fracture of left patella, closed
nondisplaced transverse fracture of left patella, and effusion of left knee were provided.
In a February 19, 2018 return to work note, Dr. Loren M. Potter, an osteopath and
orthopedic surgeon, indicated that appellant was seen in the clinic and unable to return to work.
He estimated that it would be eight weeks before appellant could return to work.
By development letter dated March 19, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her traumatic injury claim. It advised her of the type of
medical and factual evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
In an April 6, 2018 report, Dr. Timothy J. Bergan, an osteopath and preventive medicine
specialist, noted a February 17, 2018 date of injury. He diagnosed a left patellar fracture, which
he opined was work related. Dr. Bergan indicated that appellant could return to work with
restrictions on April 9, 2018.
By decision dated May 1, 2018, OWCP denied appellant’s claim. It found that the medical
evidence of record was insufficient to establish causal relationship between the diagnosed left
patellar fracture and the accepted February 17, 2018 employment incident.
LEGAL PRECEDENT
A claimant 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 filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed are causally related to the employment
injury. These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4

3

See supra note 1.

4
C.P., Docket No. 18-0665 (issued November 8, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).

2

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. 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.5 The second component is whether the employment incident caused a personal
injury.6 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.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).10
ANALYSIS
The Board finds that appellant has not established a left knee injury causally related to the
accepted February 17, 2018 employment incident.
On the date of injury appellant sought treatment from Ms. Brown, a certified physician
assistant. Reports from physician assistants, however, have no probative value as those healthcare
providers are not considered physicians as defined under FECA.11 Consequently, her report is
insufficient to establish appellant’s claim.12
On February 19, 2018 Dr. Potter indicated that appellant would be unable to return to work
for approximately eight weeks. However, he did not provide an opinion regarding whether

5

Id.

6

Id.; see also John J. Carlone, 41 ECAB 354 (1989).

7

See K.C., Docket No. 17-1693 (issued October 29, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

See K.C., id.; Robert G. Morris, 48 ECAB 238 (1996).

9

See K.C., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

C.O., Docket No. 10-0189 (issued July 15, 2010).

11

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 M.M., Docket No. 16-1617
(issued January 24, 2017).
12

J.L., Docket No. 18-0698 (issued November 5, 2018); L.M., Docket No. 18-0473 (issued October 22, 2018).

3

appellant sustained a diagnosed condition causally related to the accepted employment injury.
Therefore, Dr. Potter’s opinion is of no probative value in establishing appellant’s claim.13
In his April 6, 2018 report, Dr. Bergan diagnosed a left patellar fracture, which he opined
was work related. While he noted the correct date of injury, he failed to provide a history of
appellant’s injury. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.14 Additionally, Dr. Bergan offered only a general conclusion on causal
relationship. He did not offer a rationalized medical explanation regarding causal relationship
between the diagnosed conditions and the February 17, 2018 employment incident. A mere
conclusion without necessary rationale explaining why the physician believes that a claimant’s
accepted employment incident resulted in the diagnosed condition is insufficient to establish
appellant’s claim.15
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.16 Appellant’s honest belief that her February 17,
2018 fall caused a medical condition does not constitute medical evidence sufficient to establish
causal relationship.17 As she has not submitted rationalized medical evidence establishing a left
knee injury causally related to the accepted employment incident, she has not met her burden of
proof to establish her claim.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee injury
causally related to the accepted February 17, 2018 employment incident.

13

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

14

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
15

D.O., Docket No. 18-0086 (issued March 28, 2018).

16

See B.A., Docket No. 17-1130 (issued November 24, 2017); S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303
(2007); Donald W. Long, 41 ECAB 142 (1989).
17

See J.S., Docket No. 17-0967 (issued August 23, 2017).

18

T.O., Docket No. 18-0139 (issued May 24, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 9, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 14-486
Issued: July 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 24, 2013 appellant, through her attorney, filed a timely appeal from a
November 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
for the period commencing July 28, 2011 causally related to her employment injuries.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 21, 2013 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP previously accepted that on August 23, 2007 appellant, then a 43-year-old
automation clerk, sustained a lumbar sprain under File No. xxxxxx336. She returned to a
modified mail processing clerk position effective September 1, 2010. On October 31, 2011
appellant filed a claim for a recurrence, which OWCP received as an occupational disease claim
and accepted for aggravation of lumbar sprain and lumbar disc disease. She stopped work
following the injury on July 28, 2011 and did not return.
Appellant filed claims for compensation (Form CA-7s) for periods commencing
August 3, 2011 and submitted time analysis forms in support of her claims. She also submitted
reports dated August 8, 2011 through February 24, 2012 from Dr. Marlon Twyman, a Boardcertified family practitioner, who indicated that appellant presented to his office on
August 8, 2011 for follow up on a reinjury to her lower back on July 28, 2011 while in the
performance of duty. Dr. Twyman indicated that appellant was continued off work due to being
at increased risk for further injury and being a safety risk. On December 29, 2011 he diagnosed
internal derangement of the right knee and indicated that she may have a meniscal tear.
Dr. Twyman stated that appellant had been in physical therapy with regard to her back injury and
seemed to be responding to the therapy and time off work. Appellant needed further evaluation
of the right knee.
By letters dated March 16 and 27, 2012, OWCP requested additional medical evidence to
establish disability for work during the period claimed and afforded her 30 days to respond to its
inquiries. Appellant did not submit any additional medical evidence.
By decision dated April 11, 2012, OWCP denied appellant’s claim for disability for the
period commencing August 3, 2011 as the medical evidence was not sufficient to support
disability due to the employment injury.
On April 20, 2012 appellant, through her attorney, requested an oral hearing and
submitted reports dated March 7 through August 1, 2012 from Dr. Twyman, who reiterated the
history of appellant’s employment injuries and his opinion that she was disabled for work as a
result.
A telephonic hearing was held before an OWCP hearing representative on
August 7, 2012.
Subsequently, appellant submitted additional medical evidence. In a June 12, 2012
report, Dr. Lance Tigyer, an orthopedic surgeon, diagnosed lumbar strain. In a June 14, 2012
report, Dr. Twyman diagnosed bulging lumbar disc, lumbar strain and right meniscus tear. He
indicated that appellant’s conditions were active and would only be continually aggravated if she
was placed in positions that could precipitate her conditions. Dr. Twyman opined that her
conditions had not resolved and were being kept active by working outside her restrictions. On
August 8, 2012 he noted that appellant was unable to work due to her employment injuries and
would be evaluated in one month.

2

By decision dated October 22, 2012, OWCP’s hearing representative set aside the
April 11, 2012 decision and remanded the case for further development of the medical evidence.
Appellant submitted physical therapy notes dated January 10, 2012 and a
November 10, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine revealing
multilevel degenerative disc and facet disease. She also submitted a June 21, 2012 report from
Dr. Tigyer which expanded his diagnosis to include lumbar radiculopathy and opined that her
condition was a significant aggravation of an existing injury.
In a May 17, 2012 report, Dr. Julie Shott, a Board-certified family practitioner, diagnosed
osteoarthrosis and medial meniscus tear of the right knee.
OWCP combined appellant’s claims under File Nos. xxxxxx854 and xxxxxx336 and
referred her for a second opinion evaluation to Dr. Richard Deerhake, a Board-certified
orthopedic surgeon, to determine the nature and extent of her employment-related conditions. In
a January 23, 2013 report, Dr. Deerhake reviewed a statement of accepted facts, history of the
injury and the medical evidence of record and conducted a physical examination. He found that
appellant had mild cervical and lumbar degenerative disc disease which correlated with her age,
but no active radiculopathy which would require any type of surgical or medical intervention.
Dr. Deerhake indicated that she was receiving no medications from her family physician and
there was no reason she would not be able to return to work on a full-time basis. He opined that
appellant was not totally disabled and there had been “no demonstration of a worsening of her
condition since July 28, 2011.” Dr. Deerhake found no residuals from her accepted injuries.
By decision dated March 27, 2013, OWCP denied appellant’s claim for disability for the
period commencing July 28, 2011 on the basis of Dr. Deerhake’s report.
On April 1, 2013 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative and submitted a June 10, 2013 MRI scan which showed multilevel
disc and facet disease and lateral recess stenosis at L5-S1 bilaterally with impingement of both
S1 roots.
In a May 7, 2013 report, Dr. Tigyer diagnosed bulging lumbar disc. On June 11, 2013 he
indicated that he disagreed with the opinion of Dr. Deerhake and his report which stated that
appellant had no active radiculopathy. Dr. Tigyer opined that appellant did have a radiculopathy
which followed a right L4-5 pain pattern and a positive straight leg raise test on the right. He
indicated that the findings on her MRI scan, such as the disc displacement, helped to create
moderate central stenosis which correlated with her symptoms of radiculopathy. On
July 23, 2013 Dr. Tigyer reiterated his opinion that he disagreed with Dr. Deerhake and indicated
that appellant’s disc herniation combined with spondylotic changes cause moderate-to-severe
stenosis and these findings could most certainly result in radicular pain.
A telephonic hearing was held before an OWCP hearing representative on
August 15, 2013.
Subsequently, appellant submitted an August 10, 2013 MRI scan of the lumbar spine
which revealed multilevel disc and facet disease and lateral recess stenosis at L5-S1 laterally
with impingement of both S1 roots.
3

In a January 6, 2012 report, Dr. Thomas M. Cook, a Board-certified orthopedic surgeon,
diagnosed chondromalacia, osteoarthrosis, synovitis and medial meniscus tear of the right knee.
Appellant also submitted reports dated September 10 through October 8, 2013 from
Dr. Tigyer. On September 10, 2013 Dr. Tigyer stated that he was “unable to determine if [she
was] totally disabled” and recommended a functional capacity examination. On October 8, 2013
he opined that appellant would benefit from an L4-5 decompression and fusion.
On November 10, 2013 an OWCP medical adviser reviewed the medical evidence of
record and concluded that the recommended surgery of decompression and fusion was medically
appropriate and necessary. OWCP authorized appellant’s surgery.
By decision dated November 21, 2013, OWCP’s hearing representative affirmed the
March 27, 2013 decision on the basis that appellant did not submit sufficient evidence to
establish that she was disabled for the period commencing July 28, 2011 due to her accepted
employment injuries.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

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

6

See William A. Archer, 55 ECAB 674 (2004).

7

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

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.8
ANALYSIS
The Board finds that appellant has not established that she was disabled for the period
commencing July 28, 2011 causally related to her employment injuries. While OWCP accepted
that she sustained a lumbar sprain on August 23, 2007 and an aggravation of lumbar sprain and
lumbar disc disease on July 28, 2011, appellant bears the burden to establish through medical
evidence that she was disabled during the claimed time periods and that her disability was
causally related to her accepted injuries.9 The Board finds that she did not submit rationalized
medical evidence explaining how the employment injuries materially worsened or aggravated
her lumbar conditions and caused her to be disabled for work for the period commencing
July 28, 2011.
In his January 23, 2013 second opinion report, Dr. Deerhake found that appellant had
mild cervical and lumbar degenerative disc disease which correlated with her age, but no active
radiculopathy which would require any type of surgical or medical intervention. He indicated
that she was receiving absolutely no medications from her family physician and there was no
reason why she would not be able to return to work on a full-time basis. Dr. Deerhake opined
that appellant was not totally disabled and there had been “no demonstration of a worsening of
her condition since July 28, 2011.” He found no residuals from her accepted injuries.
In his reports, Dr. Tigyer diagnosed lumbar strain, bulging lumbar disc and lumbar
radiculopathy. On June 11 and July 23, 2013 he indicated that he disagreed with the opinion of
Dr. Deerhake and his report which stated that appellant had no active radiculopathy. However,
in a September 10, 2013 report, Dr. Tigyer stated that he was “unable to determine if [appellant
was] totally disabled.” The Board finds that he failed to provide a rationalized medical
explanation as to why appellant had employment-related residuals and how the residuals of the
employment injuries prevented her from continuing in her federal employment. Therefore,
appellant has not met her burden of proof to establish that she was disabled for work due to the
employment injuries for the periods claimed.
In his reports, Dr. Twyman diagnosed bulging lumbar disc, lumbar strain and right
meniscus tear and indicated that appellant was continued off work due to being at increased risk
for further injury and being a safety risk. He opined that her conditions had not resolved and
were being kept active by having to work outside her work restrictions. The Board has held that
when a physician’s statement regarding an employee’s ability to work consists only of a
repetition of the employee’s complaints that appellant hurts too much to work without objective
signs of disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.10 Although Dr. Twyman provided a firm
8

Id.

9

See supra notes 6-7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

10

See supra note 6.

5

diagnosis and opined that appellant was disabled, he failed to provide a rationalized medical
explanation as to why she had employment-related residuals and how the residuals of the
employment injury prevented her from continuing in her federal employment. Thus, the Board
finds that his reports are insufficient to establish appellant’s claim or create a conflict with
Dr. Deerhake.
Dr. Cook diagnosed chondromalacia, osteoarthrosis, synovitis and medial meniscus tear
of the right knee and Dr. Shott diagnosed osteoarthrosis and medial meniscus tear of the right
knee. Neither Drs. Cook nor Shott offered any probative medical opinion on whether appellant
was disabled on the dates at issue due to her accepted conditions. As such, their reports are of
diminished probative value.11 Further, OWCP has not accepted that appellant experienced an
employment-related right knee injury.
The physical therapy notes dated January 10, 2012 do not constitute medical evidence as
they were not prepared by a physician.12 The MRI scans dated November 10, 2011, June 10 and
August 10, 2013 are diagnostic in nature and therefore do not address causal relationship.
Appellant has not submitted sufficiently rationalized medical evidence to establish
disability during the period commencing July 28, 2011 causally related to her accepted
employment injuries.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds his argument is not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled for the period commencing July 28, 2011 causally related to her employment injuries.

11

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., supra note 9.

12

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

6

ORDER
IT IS HEREBY ORDERED THAT the November 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7