United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Hot Springs, SD, Employer
__________________________________________

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

Docket No. 08-2559
Issued: June 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 8, 2008 decision regarding his schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than a seven percent permanent impairment of
his left upper extremity for which he received a schedule award.
FACTUAL HISTORY
This is the second appeal before the Board. In a March 12, 2008 decision, the Board set
aside Office decisions dated November 2, 2006 and April 25, 2007 which granted 5 percent
impairment for the left upper extremity and affirmed the decisions with regard to a 21 percent
impairment of the right upper extremity. The claim was remanded for further medical
development. The Board found a conflict of medical opinion between appellant’s treating

physician, Dr. James B. Kullbom, a Board-certified orthopedic surgeon, who opined that
appellant had nine percent left arm impairment, and an Office referral physician and Office
medical adviser who opined that appellant had five percent left arm impairment. The facts and
the circumstances of the case are set forth in the Board’s prior decision and incorporated herein
by reference.1
On May 12, 2008 the Office referred appellant to a referee physician, Dr. Jeffrey A.
Wunder, a Board-certified orthopedic surgeon.
In a June 11, 2008 report, Dr. Wunder reviewed the record and appellant’s history. On
examination, he noted tenderness of the left upper trapezius, local tenderness at the
acromioclavicular joint and bicipital groove as well as the short head of the biceps tendon at the
coracoid process. Dr. Wunder determined that, in accordance with the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A.,
Guides) appellant sustained seven percent impairment of the left arm. Range of motion testing
of the left shoulder revealed flexion of 150 degrees for two percent impairment,3 extension
measured 40 degrees for one percent impairment,4 abduction measured 140 degrees for two
percent impairment,5 adduction measured 30 degrees for one percent impairment,6 external
rotation measured 85 degrees for zero percent impairment7 and internal rotation measured 70
degrees on the right for one percent impairment.8 Dr. Wunder noted no muscle atrophy, the
neurological examination revealed intact sensation and manual muscle testing was normal. He
diagnosed chronic left shoulder pain, left shoulder acromioclavicular arthralgia, probably related
to underlying osteoarthritis and probable short and long head biceps tendinitis. Dr. Wunder
opined that appellant had underlying osteoarthritis of the left shoulder which was aggravated by
his work-related activity requiring repetitive overhead activities. He noted, based on a review of
medical records, appellant reached maximum medical improvement on July 21, 2000.
Dr. Wunder opined that appellant had seven percent impairment of the left arm based on loss of
range of motion due to the accepted work-related injury.
In a July 8, 2008 decision, the Office granted appellant a schedule award for seven
percent permanent impairment of the left upper extremity. The period of the award was from
September 9 to October 22, 2005. The Office noted that appellant was previously granted a

1

Docket No. 07-1896 (issued March 12, 2008).

2

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

3

Id. at 476, Figure 16-40.

4

Id.

5

Id. at 477, Figure 16-43.

6

Id.

7

Id. at 479, Figure 16-46.

8

Id.

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schedule award for five percent impairment of the left upper extremity and was entitled to an
additional two percent impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulations10 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS -- ISSUE 1
On appeal, appellant contends that he has more than seven percent permanent impairment
of the left upper extremity. The Office accepted appellant’s claim for temporary aggravation of
bilateral shoulder osteoarthritis. The Board found that a conflict in the medical evidence arose
between Dr. Kullbom, an attending physician, who disagreed with the Office medical adviser
and an Office referral physician as to the extent of impairment to his left upper extremity.
Consequently, the Office referred appellant to Dr. Wunder to resolve the conflict.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.11
The Board finds that the opinion of Dr. Wunder is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight. Dr. Wunder
advised that appellant sustained a seven percent impairment of the left upper extremity.
Dr. Wunder reviewed appellant’s history and reported findings which establish seven
percent impairment of the left arm. He noted range of motion of the left shoulder revealed
flexion of 150 degrees on the right for two percent impairment,12 extension measured 40 degrees
on the for one percent impairment,13 abduction measured 140 degrees for two percent
impairment,14 adduction measured 30 degrees for one percent impairment,15 external rotation
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

12

A.M.A., Guides 476, Figure 16-40.

13

Id.

14

Id. at 477, Figure 16-43.

15

Id.

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measured 85 degrees for zero percent impairment16 and internal rotation measured 70 degrees on
the right for one percent impairment.17 These impairment values total seven percent.
Dr. Wunder noted that he found no muscle atrophy, intact sensation on the neurological
examination and normal manual muscle testing. He diagnosed chronic left shoulder pain, left
shoulder acromioclavicular arthralgia, probably related to underlying osteoarthritis and probable
short and long head biceps tendinitis. Dr. Wunder noted that appellant reached maximum
medical improvement on July 21, 2000. He opined that in accordance with the A.M.A., Guides
appellant sustained a seven percent impairment of the left shoulder based on loss of range of
motion due to the accepted work-related injury. The Board finds that the report of Dr. Wunder
constitutes the weight of the medical opinion.
CONCLUSION
The Board finds that appellant has no more than seven percent permanent impairment of
the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 9, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

Id. at 479, Figure 16-46.

17

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 09-1341
Issued: January 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 28, 2009 appellant filed a timely appeal of a February 4, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On November 8, 2008 appellant, then a 29-year-old mail handler, filed an occupational
disease claim alleging that he developed right shoulder pain due to his employment activities.
He first realized that his employment activities caused or aggravated his right shoulder condition
on August 29, 2008. Appellant stopped work on October 27, 2008 and returned on October 29,
2008 to modified duty.

An October 27, 2008 work restriction form from Dr. Charles Wong, a Board-certified
internist, diagnosed repetitive use injury of the hands and shoulders. Regarding the type of
injury, he checked a box to indicate that it was a “workers’ comp” injury. Dr. Wong advised that
appellant could return to modified work on October 28, 2008 with right shoulder restrictions on
pushing, pulling, overhead reaching and lifting. Dr. Wong also recommended physical therapy.
In a November 17, 2008 statement, appellant noted that on August 28, 2008 he noticed
slight right shoulder pain. He indicated that his job required constantly lifting trays of mail
weighing between 10 to 50 pounds and pushing containers weighing up to 500 pounds.
Appellant asserted that these work duties caused his alleged right shoulder condition. In a
November 24, 2008 statement, appellant’s supervisor indicated that appellant’s job required
constant walking and removing trays of mail off a roller bed.
On December 10, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence. In
particular, it requested a medical report with a diagnosis and a physician’s opinion regarding
how appellant’s federal employment contributed to the diagnosed condition.
Appellant submitted an undated statement describing his activities outside of work and
the time he spent on each. He also noted experiencing pain in his right shoulder and feet while
working. Appellant reiterated that his job duties required pushing containers weighing about 500
pounds and staging mail at various machines.
A workers’ compensation form from Dr. Wong dated October 27, 2008 reflected
appellant’s complaint of slight pain in his right shoulder and hand as well as the fingers on his
left hand. He diagnosed repetitive use injury of the shoulder and hands. He indicated no
permanent impairment. Dr. Wong also advised modified work beginning October 28, 2008.
Also on October 27, 2008, he noted that x-rays of appellant’s right shoulder and right and left
hands were negative. In a report of the same date, Dr. Wong noted appellant’s complaint of right
shoulder pain from repetitive use. Appellant also indicated that his fingers on both hands locked
up. He further reported that 95 percent of his physical activities were work related. Dr. Wong
noted that appellant’s work as a mail handler required moving “very heavy items.” He
diagnosed repetitive use injury of the right shoulder and right and left third fingers. Dr. Wong
discussed repetitive soft tissue injury with appellant and indicated he might be getting trigger
finger but that Dr. Wong did not see or feel a pop or snap. A December 9, 2008 physical therapy
discharge report noted that appellant was self-discharged and had failed to make more
appointments.
In a February 4, 2009 decision, the Office denied appellant’s claim finding that, although
the claimed events occurred, the medical evidence was insufficient as it did not provide a
diagnosis that could be connected to the identified work activities.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim

2

was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable 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
diagnosed condition and the specific employment factors identified by the employee.3
ANALYSIS
The record reflects that appellant’s job requires repetitive pushing, pulling and lifting
trays of mail. Appellant submitted insufficient medical evidence, however, to establish that he
has a diagnosed right shoulder condition causally related to these employment activities.
Dr. Wong’s October 27, 2008 report noted that appellant’s job as a mail handler required
moving heavy items and he diagnosed repetitive use injury of the right shoulder and right and
left third fingers. Although this report provides some support for causal relationship, Dr. Wong
did not provide any rationale explaining how moving heavy items caused or aggravated a
diagnosed right shoulder condition.4 Dr. Wong also reported appellant’s statement that 95
percent of his physical activities were work related; however, neither the fact that the disease
became apparent during a period of employment, nor the belief of appellant that the disease was
caused or aggravated by employment conditions, is sufficient to establish causal relation.5 As
Dr. Wong’s statement relating appellant’s activities to his work duties merely reiterated
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (a medical opinion not fortified by medical
rationale is of little probative value); George Randolph Taylor, 6 ECAB 986, 988 (1954).
5

Ernest St. Pierre, 51 ECAB 623 (2000).

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appellant’s opinion on causal relation, it is insufficient to establish his burden of proof. Likewise
the doctor’s indication on the October 27, 2008 work restriction form that appellant’s condition
was a “workers’ comp” injury is also insufficient to establish the claim as Dr. Wong did not
provide any medical reasoning explaining how particular work duties caused or aggravated a
diagnosed medical condition.
Other reports from Dr. Wong did not address the issue of causal relationship or indicate
whether appellant’s job activities caused or aggravated a diagnosed right shoulder condition.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.6 In
particular, Dr. Wong’s October 27, 2008 workers’ compensation form report diagnosed
repetitive use injury of the hands and shoulders but he did not provide a reasoned opinion on
causal relationship or otherwise identify the types of repetitive use activities that contributed to
appellant’s diagnosed condition. Additionally, Dr. Wong’s x-ray interpretation of appellant’s
hands and right shoulder revealed normal findings and no fractures.
The record also contains a physical therapy report dated December 9, 2008. However,
the records from appellant’s physical therapist do not constitute competent medical opinion in
support of causal relation as a physical therapist is not a physician as defined under the Act.7
Consequently, appellant did not submit sufficient medical evidence to establish that he
has a right shoulder condition caused or aggravated by his employment activities.
On appeal, appellant asserts that his claim should be accepted as the activities responsible
for his right shoulder condition include pushing and pulling trays of mail weighing up to 745
pounds, which caused pressure on his hands, shoulders and feet. However, as noted, appellant
has not met his burden of proof to establish his claim because the medical evidence is
insufficient in explaining how appellant’s employment activities caused a diagnosed right
shoulder condition. The Board notes that the Office accepted the employment activities he
identified but acceptance of appellant’s claim also requires that appellant submit rationalized
medical evidence from a physician explaining the relationship between the identified
employment activities and a diagnosed medical condition.8 As the medical evidence of record
did not provide any rationalized opinion on causal relationship, appellant has not met his burden
of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

7

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008); see 5 U.S.C. § 8101(2).

8

See supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 4, 2009 is affirmed.
Issued: January 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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A.A., Appellant
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and
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DEPARTMENT OF THE ARMY,
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FORT BLISS, TX, Employer
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_________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-128
Issued: February 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2014 appellant filed a timely appeal from a July 31, 2014 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 an injury in the
performance of duty.
FACTUAL HISTORY
On June 16, 2014 appellant, then a 61-year-old histopathology technician, filed a
traumatic injury claim alleging that on April 4, 2014 she sustained an injury in the performance
of duty. She alleged that, as she was preparing to park her car and report for work, a car cut
1
2

5 U.S.C. § 8101 et seq.

Although appellant submitted new medical reports after the issuance of OWCP’s decision, the Board lacks
jurisdiction to review new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

across lanes and cut her off causing her to hit the front passenger side of the other vehicle.
Appellant alleged that she experienced body aches, stomach pain, and headaches. Her supervisor
indicated that she was in the performance of duty when the incident occurred.
By letter dated June 27, 2014, OWCP notified appellant that the evidence was
insufficient to establish her claim. It advised her of the type of evidence needed to establish her
claim, particularly asking that she provide a physician’s opinion as to how the work incident
caused a diagnosed medical condition.
By decision dated July 31, 2014, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish that a condition had been diagnosed in connection with the
work incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
On April 4, 2014 appellant was involved in a motor vehicle accident as she was about to
park her car and report for work. OWCP accepted that she was in the performance of duty and
the evidence of record supports that the claimed work incident occurred as alleged. Therefore,
the Board finds that the first component of fact of injury is established. However, there is no
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

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

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medical evidence to establish that the work-related incident on April 4, 2014 caused a diagnosed
condition.
There was no medical evidence submitted to OWCP before the issuance of the July 31,
2014 decision. As noted, part of a claimant’s burden of proof includes the submission of medical
evidence establishing that the employment incident caused an injury.
Appellant may submit new evidence or argument as part of a formal 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 did not meet her burden of proof to establish a traumatic
injury in the performance of duty on April 4, 2014.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakford, IL, Employer
__________________________________________

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

Docket No. 10-2169
Issued: September 22, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant filed a timely appeal from March 11 and July 8, 2010
decisions of the Office of Workers’ Compensation Programs (OWCP) reducing appellant’s
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction only over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation effective March 1, 2010 based on its determination that the constructed position of
policyholder-information clerk represented her wage-earning capacity.
On appeal, appellant’s attorney contends that the decision was contrary to fact and law.

1

5 U.S.C § 8101 et seq.

FACTUAL HISTORY
On October 25, 2006 appellant, then a 49-year-old postmaster, filed an occupational
disease claim alleging that as a result of years of lifting heavy weight, extension of her arm and
carrying mail, she sustained C5-6 degenerative disc disease, computerized tomography
radiculopathy and rotator cuff tendinitis. On November 14, 2006 OWCP accepted her claim for
aggravated preexisting degenerative disc disease with myelopathy, cervical region; and disorder
of bursae and tendons in shoulder region, unspecified, right (right rotator cuff tendinitis). On
November 9, 2006 appellant underwent a C5-6 anterior cervical discectomy with fusion with
instrumentation and iliac crest bone graft. On June 14, 2007 her claim was expanded to include
brachial neuritis or radiculitis. Appellant received appropriate compensation and medical
benefits. On September 12, 2007 Dr. Joseph Williams, a Board-certified orthopedic surgeon,
indicated that she was released to return to work with restrictions and she returned to part-time
work with restrictions on or about September 20, 2007. However, appellant stopped work on or
about November 6, 2007 and compensation benefits for total disability were resumed.
In a November 26, 2007 report, Dr. David Wright, appellant’s Board-certified internist,
indicated that appellant was totally disabled from her job. He noted that after her C5-6 fusion
she developed bilateral C5 radiculopathies and now is unable to lift, extend her shoulders or
grasp objects including pens and pencils. Dr. Wright also noted that appellant had bilateral
rotator tendinitis with a right supraspinatus tear and was unable to put her arms above the level
of her shoulders. He indicated that she was on long-term narcotic therapy with opioid
dependence which will inhibit her from doing any type of concentration, operating any type of
machinery or any activity involving cognitive function. Dr. Wright further noted that appellant
had developed a rest tremor because of her chronic pain that inhibits any type of grasping or fine
manipulation. He noted that she has parasomnias with somatic symptoms of trouble
concentrating, dizziness with standing up and lightheadedness and therefore should not be
engaged in any activity that involves standing for more than 5 to 10 minutes. Dr. Wright further
noted that with appellant’s bilateral sacroiliac strain, she is not to sit for more than 5 to 10
minutes. In a December 24, 2007 note, he indicated that she has two types of tremors, i.e., a rest
tremor caused by dopamine deficiency from chronic pain, most likely from her cervical
radiculopathy and in addition, an essential-like tremor which is worse with movement, which
also may be indirectly related to her cervical radiculopathy.
On December 19, 2007 OWCP referred appellant to Dr. Stephen J. Pineda, a Boardcertified orthopedic surgeon, for a second opinion. In a January 22, 2008 report, Dr. Pineda
reviewed appellant’s work history, past medical history and physical examination and listed the
following diagnoses: (1) status postanterior cervical discectomy and fusion; (2) cervical spine
pain syndrome; and (3) rule out work relationships.2 He noted that she did not have any
objective findings of disability or dysfunction other than range of motion which is limited by
pain, not by mechanical issues. Dr. Pineda further noted that at this point if appellant’s x-rays
demonstrate that her function is healed, his opinion is that the mechanical portion of her cervical
2

The Board notes that Dr. Pineda did not sign this report. However, the report is dated January 22, 2008, the
second opinion evaluation with Dr. Pineda was scheduled for that date; and Dr. Pineda discusses his January 22,
2008 report in his June 12, 2008 report. Accordingly, the Board accepts the January 22, 2008 report as the report of
Dr. Pineda.

2

disc disease has terminated, but that the pain syndrome in her work continues. He noted that
from a mechanical standpoint, if she has fused her spine, he would allow her to do any activities.
Dr. Pineda noted that the only issue would be pain. He concluded that appellant was capable of
some work and recommended a functional capacity evaluation. Dr. Pineda noted that he could
not complete her work form at this point. He summarized that from a mechanical perspective no
restrictions are required and that pain rather than true mechanical dysfunction would limit
appellant’s activity or capability.
On March 13, 2008 appellant underwent a functional capacity evaluation. The
occupational therapist noted that it was difficult to comment as to her maximal functional
capacity due to apparent sub-maximal and inconsistent efforts. He also noted that appellant
stopped many of the assessment tests due to right elbow/forearm pain and reported forceful
gripping aggravated this pain, seeming presenting as possible lateral epidconylitis. The
occupational therapist noted that she demonstrated increased symptom provocation with material
handling and many of the positional assessments. He believed that appellant is employable at a
light physical demand level. The occupational therapist noted that due to increased symptoms
during overhead lifting and elevated work, she may not tolerate repeated overhead work or
overhead lifting greater than 10 pounds. He noted that appellant may require extended or more
frequent breaks and/or alteration of her work methods such as unloading carts/bags in smaller
portions to prevent symptom aggravation. The occupational therapist further opined that
prognosis for work condition and/or further physical therapy is guarded due to limited success of
previous courses of physical therapy/interventions, length of time appellant has spent in the
patient role and apparent lack of occupational goals.
In a June 12, 2008 report, Dr. Pineda issued the following “addendum” to his report. He
noted that at the time of his initial report on or around January 22, 2008, the major restriction he
had placed on appellant was based on symptoms and presuming the fusion had healed.
Dr. Pineda noted that, during appellant’s functional capacity evaluation, she gave submaximal
and inconsistent levels of efforts and that therefore the therapist was not able to determine her
true capabilities. He stated that her effort skewed the examination and her true effort is
essentially unknown based on this. Dr. Pineda opined that appellant can do any activity as she
wishes and that pain would be her only restrictor. He indicated that he would not place any
restrictions on her, assuming that her surgery had healed and that her primary surgeon does not
have any additional restrictions for her.
On October 21, 2008 OWCP referred appellant to Dr. Stephen F. Weiss, a Boardcertified orthopedic surgeon, for an impartial medical examination. In the memorandum of
referral, it noted that the referral was to resolve the conflict between the opinion of appellant’s
treating physician and the second opinion physician with regards to appellant’s ability to work.
In a December 8, 2008 report, Dr. Weiss diagnosed status/post C5-6 disc excision and
fusion; impingement syndrome -- right shoulder. He opined that appellant could not return to her
regular job as a postmaster without some modification. With regards to specific work
restrictions, Dr. Weiss recommended that she not lift more than 30 pounds frequently or more
than 50 pounds occasionally. He noted that these restrictions were necessary as a result of
appellant’s neck condition and should be considered permanent. With regards to her current
right shoulder condition, Dr. Weiss recommended that she limit any overhead activity and not lift

3

more than 10 pounds occasionally. He opined that these restrictions were temporary as further
treatment is indicated. Dr. Weiss concluded that although appellant needs no further treatment
for her neck condition further treatment for her shoulder condition was appropriate. Specifically,
he recommended that injections be considered along with an exercise program and that if her
symptoms were still problematic, then he recommended an arthroscopy.
On June 3, 2009 OWCP referred appellant to a vocational rehabilitation counselor for the
development of a suitable job with the employing establishment or a new employer.
By letter dated June 16, 2009, the employing establishment indicated that appellant
would not be capable of returning to her present position. It proposed an alternate position and
asked OWCP whether this position would be acceptable.
In a July 20, 2009 report, Dr. Wright reiterated that appellant has cervical, thoracic and
lumbar radiculopathies, all documented by magnetic resonance imaging (MRI) scan
examinations and nerve condition velocity/electromyogram studies. He noted that she has had
two cervical fusion surgeries, initially one on C5-6 with subsequent removal of this fusion and
another fusion done at C4-5 in the last year. Dr. Wright stated that appellant has residual
headaches from her cervical radiculopathy as well as bilateral brachial, cubital, radial and carpal
neuropathies and no physician will operate on her. He also indicated that she was opioid
dependent because of the residual pain, which would preclude her from lifting more than 10
pounds, standing for more than three minutes or sitting for more than 30 minutes. Dr. Wright
noted that the opioid analgesics that appellant was on cause cognitive dysfunction. He indicated
that she has documented knee osteoarthritis that prevents her from climbing any stairs.
Dr. Wright also noted that appellant has refractory restless leg syndrome and that this causes
jerks, sudden episodes of sleepiness as well as parasomnias and even some hallucinations. He
did not believe that she could perform her date-of-injury job and stated that, if she works,
appellant will need to be accommodated for sleeping and naps. Dr. Wright concluded that she
has multiple disabilities that preclude any type of work and that the treatment plan for her is
multiple visits to various surgeons and himself for postoperative care and obtaining narcotics.
A new functional capacity evaluation was performed on July 22, 2009 at which time the
counselor determined that appellant was demonstrating subjective tolerances at just above a light
physical demand level, which is below the required demand level for performance of her job at
the employing establishment. He noted that while she is employable at the levels demonstrated,
her postures, medical history and pain behavior may be barriers to a successful return to work.
The counselor believed that appellant had the capability to improve her functional levels if she
were motivated to do so.
On August 9, 2009 the vocational rehabilitation counselor indicated that appellant was
capable of returning to work as a policyholder-information clerk. He noted that this position was
a sedentary position and involved lifting of up to 10 pounds and was performed in sufficient
numbers so as to make it reasonably available to appellant within her commuting area. The
vocational rehabilitation noted that a variety of skills associated with appellant’s past position as
a postmaster would transfer into a sedentary capacity where the clerk is responsible for ordering,
supervising, compiling, scheduling, cash handling, clerking, customer service and handling

4

employee and personnel issues. He noted that she had the ability to handle multiple issues and
deal with customers with a variety of temperments and complex issues.
On January 28, 2010 OWCP issued a notice of proposed reduction of appellant’s wageloss compensation, noting that she had the capacity to earn wages as a policyholder-information
clerk at a rate of $541.15 a week. It gave her 30 days to respond to the proposed reduction and
indicated that if no response was received within that time, OWCP would proceed to reduce her
compensation. Appellant did not respond within the time allotted.
By decision dated March 11, 2010, OWCP made the reduction of compensation benefits
final.
On March 16, 2010 appellant, through her attorney, requested a telephonic hearing which
was held on June 1, 2010.
In a May 19, 2010 medical opinion, Dr. Edward Trudeau, a Board-certified physiatrist,
stated that appellant was disabled from her work activities. He noted that her condition had
worsened since he last saw her. Dr. Trudeau compared the prior diagnostic tests of December 8,
2008 with current ones, and noted, inter alia, that there has been persistence of an increase of
electroneurophysiologic testing abnormality in both the right C5 and L5 distributions, persistence
of irritability in the right T6 innervation distribution, a worsening of the right C5 and L5
radiculopathies, persistence of the irritation in the right T6 dorsal primary ramus distribution and
persistence of sensory neuropathy, distal, diffuse, symmetrical and axonal. He also noted a new
finding of bilateral ulnar neuropathies at the elbow, cubital tunnel syndrome.
In a May 24, 2010 report, Dr. Wright noted that appellant has long-term cervical stenosis
(involving C4-6) for which she had undergone two cervical fusion surgeries, but unfortunately
these surgeries had been ineffective. He noted that she continued to have problems with
weakness, numbness and pain from her shoulder to the number 3, 4 and 5 digits bilaterals. In
addition, Dr. Wright noted that appellant has had documented T6 spinal stenosis with associated
radiculopathy as well as L3-4 and radiculopathy with an inability to walk for prolonged periods
of time. He noted that compounding her problems, she had developed pseudotumor cerebri
leading to a loss of peripheral vision which would inhibit any type of job that involves vision.
Dr. Wright noted that appellant cannot lift, push, sit or stand for more than 15 minutes at a time.
In addition, he noted that she suffered from headaches, diplopia and vertigo. Dr. Wright
indicated that appellant was prohibited by these conditions from any job which involved
concentration, writing or vision.
By decision dated July 8, 2010, OWCP’s hearing representative affirmed OWCP’s
March 11, 2010 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3
3

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

Section 8115(a) of FECA,4 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his actual earnings if her actual
earnings fairly and reasonably represent her wage-earning capacity. Generally, wages actually
earned are the best measure of a wage-earning capacity and in the absence of evidence showing
they do not fairly and reasonably represent the injured employee’s wage-earning capacity, must
be accepted as such measure.5 If the actual earnings do not fairly and reasonably represent
wage-earning capacity or if the employee has no actual earnings, her wage-earning capacity is
determined with due regards to the nature of his injury, her degree of physical impairment, her
usual employment, her age, her qualifications for other employment, the availability of suitable
employment and other factors and circumstances which may affect her wage-earning capacity in
her disabled condition.6 Wage-earning capacity is a measure of the employee’s ability to earn
wages in the open labor market under normal employment conditions.7 The job selected for
determining wage-earning capacity must be one reasonably available in the general labor market
in the commuting area in which the employee lives.8 In determining an employee’s wageearning capacity, OWCP may not select a makeshift or odd lot position or one not reasonably
available on the open labor market.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to its wage-earning capacity specialist for selection of a position, listed in the
Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regards to her physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.10 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.11
Section 8123(a) of FECA provides in pertinent part that if there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.12 This is called a
referee examination and OWCP will select a physician who is qualified in the appropriate
4

5 U.S.C. § 8115.

5

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

Id.

9

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

10

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

11

Id. See Shadrick, 5 ECAB 376 (1953).

12

5 U.S.C. § 8123(a).

6

specialty and who has no prior connection with the case.13 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
OWCP accepted appellant’s claim for aggravated preexisting degenerative disc disease
with myelopathy, cervical region disorder of bursae and tendons in shoulder region, unspecified,
right and brachial neuritis or radiculitis. Appellant underwent two fusion surgeries. OWCP
reduced her compensation based on her wage-earning capacity in the constructed position of
policyholder-information clerk effective March 1, 2010. The Board finds that it properly
reduced appellant’s compensation.
Appellant’s treating physician, Dr. Wright, submitted numerous medical reports
indicating that appellant either was completely unable to work or had serious issues with
returning to work. In his November 26, 2007 report, Dr. Wright indicated that she was unable to,
inter alia, lift, put her arms above her shoulder, extend her shoulders, grasp objects or sit more
than 5 to 10 minutes. He also noted that appellant’s long-term narcotic therapy with opioid
dependence will inhibit her from doing any type of concentration, operate any type of machinery
or conduct any activity involving cognitive function. OWCP referred appellant to Dr. Pineda for
a second opinion. Dr. Pineda would not place any restrictions on appellant, noting that she could
do any activity and that pain was her only restrictor.
Due to the conflict between Dr. Wright and Dr. Pineda regarding appellant’s ability to
work, OWCP properly referred her to Dr. Weiss for an impartial medical examination.
Dr. Weiss diagnosed appellant with status post C5-6 disc excision and fusion; impingement
syndrome -- right shoulder and found that she had work restrictions and that she could not lift
more than 30 pounds frequently or more than 50 pounds occasionally due to her neck condition.
With regards to appellant’s right shoulder condition, he recommended that appellant not lift
overhead 10 pounds on occasion. Dr. Weiss stated that further treatment for her right shoulder
was necessitated but not for her neck condition. He concluded that appellant was unable to
return to her date-of-injury position without modification. The Board finds that the special
weight of the evidence lies with the report of Dr. Weiss who concluded that appellant was
capable of working with restrictions due to the effects of the employment injury.
OWCP then referred the case to a vocational rehabilitation counselor who concluded that
appellant was capable of returning to work as a policy-information clerk. The vocational
rehabilitation counselor noted that this was a sedentary position that involved lifting up to 10
pounds and was within appellant’s physical restrictions. He also properly evaluated whether
appellant had the vocational capacity to compete for this position and determined that her skills
as a postmaster would transfer to the duties of the position of policyholder-information clerk.
13

R.H., 59 ECAB 382 (2008); 20 C.F.R. § 10.321.

14

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

7

Finally, the vocational rehabilitation counselor determined that the position was available in
sufficient numbers so as to make it reasonably available within appellant’s commuting area.
Based on these reports, OWCP proposed reducing appellant’s compensation benefits.
Subsequent to this notice of proposed reduction of benefits, appellant submitted reports by her
physicians, Drs. Trudeau and Wright, contending that she was totally disabled. Dr. Wright
reiterated his prior statement that appellant was disabled and Dr. Trudeau discussed her
diagnostic tests and concluded that she was disabled. These reports were not sufficient to
overcome the special weight given to the opinion of the impartial medical examiner. The Board
has long held that the reports from a physician who was on one side of a medical conflict that an
impartial specialist resolved are generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict.15
OWCP properly applied the Shadrick formula16 and considered the proper factors, such
as availability of suitable employment and appellant’s physical limitations, usual employment,
age and employment qualifications in determining that the position of policyholder-information
clerk represented her wage-earning capacity.17 The weight of the evidence of record establishes
that appellant had the requisite physical ability, skill and experience to perform the position of
policyholder-information clerk and that such position was reasonably available within the
general labor market of her commuting area.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
effective March 1, 2010 based on its determination that the constructed position of policyholderinformation clerk represented her wage-earning capacity.

15

I.J., 59 ECAB 408 (2008); M.K., Docket No. 10-1572 (issued May 23, 2011).

16

Albert C. Shadrick, supra note 11 as codified in 20 C.F.R. § 10.403.

17

See Clayton Varner, 37 ECAB 248, 256 (1985); P.B., Docket No. 10-2200 (issued June 21, 2011).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 8 and March 11, 2010 are affirmed.
Issued: September 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Denver, CO, Employer
__________________________________________

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

Docket No. 19-0228
Issued: June 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 8, 2018 appellant filed a timely appeal from a June 18, 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 traumatic injury
causally related to the accepted February 22, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that on appeal appellant submitted additional evidence. However, section 501.2(c)(1) of 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 evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On February 26, 2018 appellant, then a 39-year-old technical information specialist, filed
a traumatic injury claim (Form CA-1) alleging that on February 22, 2018 she sustained an injury
to her right knee, chin, and right hand when she fell as her shoe became stuck on exposed carpet
glue while in the performance of duty. She did not stop work.
In a February 27, 2018 report, Dr. Krystyna Lindenmuth, a Board-certified family
practitioner, indicated that she saw appellant on February 26, 2018 after she presented for followup care for a hand fracture. She noted that appellant accidentally fell on her right hand at work a
few days earlier. Dr. Lindenmuth assessed “[c]losed nondisplaced fracture of shaft of fifth
metacarpal bone of right hand.”
In a development letter dated May 18, 2018, OWCP acknowledged receipt of appellant’s
claim and informed her that additional evidence was needed to establish her claim. It advised her
of the type of factual and medical evidence needed and provided a questionnaire for her
completion. By separate letter of even date, OWCP also requested additional information from
the employing establishment. It afforded appellant and the employing establishment 30 days to
respond. No response was received.
By decision dated June 18, 2018, OWCP accepted that the February 22, 2018 employment
incident occurred as alleged, but denied appellant’s claim, finding that she had not submitted
evidence containing a medical diagnosis from a qualifying physician in connection with the
accepted employment incident. Specifically, it noted that the medical evidence of record included
a February 27, 2018 report from “Krystyna Lindenmuth, RMPC” and explained that nurses and
nurse practitioners are not considered qualified physicians under FECA, thus appellant had not
satisfied the medical component of fact of injury and therefore had not met the requirements for
establishing an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3

Supra note 1.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

2

to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine 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.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s traumatic injury claim finding that the evidence of record did
not contain a medical diagnosis from a qualified physician, noting that the available evidence was
from a nurse or nurse practitioner and that nurses are not considered qualified physicians under
FECA.12 It correctly noted that nurses and nurse practitioners are not qualified physicians,
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, 57 ECAB 364 (2006).
10

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law); see also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA); S.J., Docket No. 17-0783,
n.2 (issued April 9, 2018) (nurse practitioners are not considered physicians under FECA); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).

3

however, it misidentified Dr. Krystyna Lindenmuth, a Board-certified family practitioner, as a
nurse or nurse practitioner.
In its June 18, 2018 decision denying appellant’s claim, OWCP indicated that it received a
February 27, 2018 report from “Krystyna Lindenmuth, RMPC.” The Board notes that the report
indicated that appellant saw “Krystyna Lindenmuth MD” during her office visit at Rocky
Mountain Primary Care, which the report abbreviated as “RMPC” and identifies as
Dr. Lindenmuth’s clinical affiliation. In the report, Dr. Lindenmuth provides a firm diagnosis of
fifth metacarpal bone fracture of the right hand and opines that appellant’s injury occurred as a
result of an accident at work a few days prior.
Accordingly, the Board finds that appellant has established a diagnosed medical condition.
OWCP’s June 18, 2018 decision shall be set aside and the case remanded. On remand, following
such further development as may be deemed necessary, OWCP shall issue a de novo decision on
the issue of casual relationship.
CONCLUSION
The Board finds the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: June 12, 2019
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
3

Id.

4

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

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).
6

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

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 11-886
Issued: January 27, 2012

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant, through his attorney, filed a timely appeal from a
January 12, 2011 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 sustained a left shoulder injury on April 20, 2010 at the
time, place and in the manner alleged.
FACTUAL HISTORY
On April 23, 2010 appellant, a 49-year-old mail handler, filed a Form CA-1 claim for
benefits, alleging that he experienced pain in his left shoulder and the left side of his chest while
engaging in lifting, loading, sweeping and preparing flat mail on April 19, 2010.
1

5 U.S.C. § 8101 et seq.

In a statement received by OWCP on April 28, 2010, Manager Renee Chenee noted that
on April 20, 2010, at approximately 3:10 p.m., appellant told her that he was having chest pains.
She called 911 and an ambulance arrived at the worksite. When the paramedics arrived appellant
appeared confused and lightheaded with pain in his chest and numbness in his legs. He told the
paramedics that he felt similar to when he previously experienced angina. Appellant advised that
he was on medication for high blood pressure. Ms. Chenee stated that an ambulance took him to
the emergency room.
On April 27, 2010 Supervisor Luther Martinez stated that he saw appellant on April 20,
2010 at approximately 3:20 p.m. in the manager’s office. Appellant complained of chest and
shoulder pain radiating down to his groin. Mr. Martinez immediately notified the worksite
manager, who called 911. He stated that appellant appeared apprehensive and was guarding his
trunk area. The emergency personnel arrived a short time later.
In a Form CA-17 report dated May 6, 2010, it was noted that appellant had sustained an
injury at work on April 20, 2010 while prepping, sweeping and loading.
A treatment note was received by OWCP on May 18, 2010 which indicated that appellant
was taken to the hospital and evaluated on April 20, 2010.
In a May 27, 2010 report, Dr. Melvin Romero, a Board-certified family practitioner,
stated that appellant had a history of left shoulder pain since April 2010. He related that
appellant believed that he injured his shoulder at work while engaged in heavy lifting, carrying
and other work duties. Dr. Romero recommended that appellant undergo a magnetic resonance
imaging (MRI) scan. Appellant also had neck tightness and a spasm with movement of the left
shoulder. Dr. Romero advised that appellant’s etiology could be attributable to an intra-articular
injury due to heavy lifting and significant use daily at work. In progress reports dated from June
to August 2010, he reiterated his findings and conclusions and stated that the etiology of
appellant’s left shoulder condition was musculoskeletal.
By letter dated June 24, 2010, OWCP advised appellant that he needed to submit
additional factual and medical evidence in support of his claim, including a comprehensive
medical report from his treating physician. Appellant was provided 30 days to submit the
requested information.
A hospital emergency report dated April 20, 2010, received by OWCP on June 29, 2010,
noted that appellant stated that he had an acute onset of substernal chest pain at 3:15 p.m. while
working at the employing establishment. Appellant experienced dizziness, dyspnea and nausea.
He advised that his pain was consistent with an episode in 2004 when he had to have a cardiac
catheterization. The pain radiated to appellant’s left shoulder, upper back, lower back and groin.
By decision dated August 3, 2010, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that the claimed medical condition was causally related to the
identified employment activities.
By letter dated August 6, 2010, appellant’s attorney requested an oral hearing, which was
held on November 3, 2010.
2

A physical therapy report dated July 26, 2010, received by OWCP on November 8, 2010
stated that appellant had complained of left shoulder, chest and upper back pain which began to
progressively increase as of April 19, 2010. Appellant noticed that the pain was steadily increasing
for the prior two weeks, but became so severe that he went to the hospital due to his history of
having a heart condition. He stated his belief that the injury may have occurred at work.
In a Form CA-17 report dated August 5, 2010, Dr. Romero advised that appellant sustained
an injury to his left shoulder/chest while lifting, prepping, loading and sweeping flats at work. He
noted left shoulder pain with limited range of motion and diagnosed left shoulder tendinitis.
Dr. Romero checked a box indicating that appellant’s description of symptoms corresponded with
the history of injury.
In an August 10, 2010 report, Dr. Romero stated that appellant continued to experience left
shoulder discomfort and pain. When he first examined appellant, there was significant pain and
discomfort in the left anterior shoulder with left posterior shoulder pain. Appellant stated that his
pain was directly related to work-based activity.
In a September 27, 2010 statement, appellant asserted that on April 20, 20102 at about
2:00 p.m. he began to feel very warm, light headed and experienced sharp pain in his left chest.
He worked for another 10 minutes and then his symptoms worsened. Appellant went to his
manager’s office to report his condition and to receive assistance. After spending the night at the
hospital, he was released the next morning and cleared of having any heart-related problems.
Appellant stated that his injury occurred on April 20, 2010, while he was prepping mail. He
indicated that he sustained a repetitive motion injury and noted that his treating physician,
Dr. Romero, found that his injury was work related.
At the hearing, appellant initially stated that his work injury initially occurred on April 19,
2010; but amended this to April 20, 2010. He testified that approximately 30 to 45 minutes into his
work shift, he was at the prepping area, reaching for a tub of mail going down an incline belt when
he felt a stabbing pain in his left shoulder and chest area. Appellant attributed his injury to some
type of repetitive motion activity. After being transported to the hospital, he underwent testing for
a heart condition and was advised by a physician the next day that his symptoms were most likely
musculoskeletal in origin.
By decision dated January 12, 2011, an OWCP hearing representative affirmed the
August 3, 2010 decision denying appellant’s claim. She modified the decision, finding that he
had not established that the alleged April 20, 2010 incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
2

Appellant originally stated that his injury occurred on April 19, 2010; however, he crossed this out and wrote
“April 20, 2010.”
3

Supra note 1.

3

United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty,8 nor can it find fact
of injury if the evidence fails to establish that the employee sustained an “injury” within the
meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.9 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cause doubt on an employee’s statements in
determining whether he has established his claim.10
ANALYSIS
OWCP’s hearing representative found that the record contained insufficient evidence to
establish that the claimed April 20, 2010 event occurred at the time, place and in the manner
alleged. The Board finds, however, that appellant presented sufficient evidence to establish that he

4

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

5

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

6

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

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

8

Pendleton, supra note 4.

9

See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued March 9,
1995).
10

See Constance G. Patterson, 41 ECAB 206 (1989).

4

experienced chest pain that day at the time, place and in the manner alleged.11 Appellant, however,
has not established that he sustained a left shoulder injury as a result of the incident.
Appellant filed the claim for an April 20, 2010 work incident in a timely fashion, on
April 23, 2010, and sought medical attention on April 20, 2010, the day the incident occurred.
Appellant’s supervisor Mr. Martinez stated on April 27, 2010 that appellant approached him at
approximately 3:20 p.m. on April 20, 2010, complaining of chest and shoulder pain radiating
down to his groin. The April 20, 2010 hospital emergency report advised that appellant
experienced substernal chest pain at 3:15 p.m. while standing at work that radiated to his left
shoulder, upper back, lower back and groin. At the hearing, appellant testified that he was
prepping mail on April 20, 2010, when he experienced a stabbing pain in his chest and left
shoulder.
The Board has held that an employee’s statement alleging that an incident 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.12 Appellant’s statement that he experienced left shoulder pain on April 20,
2010 while prepping mail was not contradicted by any probative evidence of record. He sought
medical attention at a local hospital emergency room on April 20, 2010, the date of the alleged
incident and from Dr. Romero on May 27, 2010.
The Board finds that the totality of the evidence, which includes appellant’s April 23, 2010
statement on his CA-1 form, the April 20, 2010 hospital emergency report and his supervisor’s
April 27, 2010 e-mail are sufficient to establish an incident occurred in the performance of duty on
April 20, 2010. The employing establishment did not controvert the claim and provided statements
from management which corroborated his assertion.13 The record contains no contemporaneous
factual evidence sufficient to find that the claimed April 20, 2010 work incident did not occur as
alleged.14 The Board finds that the evidence of record is sufficient to establish that appellant
reached for a tub of mail on April 20, 2010, while prepping mail, at the time, place and in the
manner alleged and experienced shoulder and chest pain.
The Board finds, however, that appellant failed to submit rationalized medical opinion
evidence to establish how the claimed April 20, 2010 incident was competent to cause a left
shoulder injury. In this regard, the Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.15
11

Id.

12

Patterson, supra note 10; Thelma S. Buffington, 34 ECAB 104 (1982).

13

While appellant erroneously stated in his CA-1 form and in his September 27, 2010 statement that his injury
occurred on April 19, 2010, this error can be considered harmless. His error is outweighed by the fact that his
supervisors witnessed him on April 20, 2010 experiencing pain, stopping work and being taken to the hospital
emergency room, which also provided an April 20, 2010 report documenting that he was examined and treated for
chest and shoulder pain on that date.
14

See Thelma Rogers, 42 ECAB 866 (1991).

15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

5

On May 27, 2010 Dr. Romero advised, that appellant experienced left shoulder pain since
April 2010. He did not provide any specific diagnosis of appellant’s left shoulder condition.
Dr. Romero indicated that appellant attributed his left shoulder condition to his work duties,
which included heavy lifting, carrying and other activities. He stated that the etiology of
appellant’s left shoulder injury could have stemmed from an intraarticular injury caused by
heavy lifting and significant daily use of the shoulder while at work. This opinion is speculative
in nature. In an August 10, 2010 report, Dr. Romero reiterated that he had treated appellant for
longstanding left shoulder discomfort and pain. During his initial examination, appellant had
significant pain and discomfort in the left anterior and posterior shoulder regions, which he
attributed to work-related activity.
The reports from Dr. Romero are of diminished probative value in that he did not provide
a firm medical diagnosis of appellant’s condition or explain with adequate medical rationale how
any left shoulder condition was caused by the work incident of April 20, 2010.16 He summarily
noted that appellant’s left shoulder condition was causally related to the April 20, 2010 incident
in which he was prepping mail. The weight of medical opinion is determined by the opportunity
for and thoroughness of examination, the accuracy and completeness of physician’s knowledge
of the facts of the case, the medical history provided, the care of analysis manifested and the
medical rationale expressed in support of stated conclusions. Appellant failed to provide a
rationalized, probative medical opinion relating his current condition to any factors of his
employment. Therefore, he failed to provide a medical report from a physician that the work
incident of April 20, 2010 caused or contributed to the claimed left shoulder injury.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant, therefore, did not provide a medical opinion to
sufficiently describe or explain the medical process through which the April 20, 2010 work
incident would have caused the claimed injury.
The Board notes that OWCP did not adjudicate whether appellant’s medical expenses
incurred on April 20, 2010 are compensable. Ordinarily, the employing establishment will
authorize treatment of a job-related injury by providing the employee a properly executed (Form
CA-16) within four hours.17 In this case, the record does not contain a CA-16 form or any other
authorization from OWCP for medical treatment. However, under section 8103 of FECA,
OWCP has broad discretionary authority to approve unauthorized medical care which it finds
necessary and reasonable in cases of emergency or other unusual circumstances.18
Appellant was transported by ambulance to a hospital emergency room from the
employing establishment at the request of his supervisors, immediately after the April 20, 2010
incident. OWCP did not adjudicate whether emergency or unusual circumstances were present.
Although it adjudicated and denied appellant’s claim of injury, OWCP did not adjudicate the
issue of whether he should be reimbursed for medical expenses incurred. OWCP is required to
16

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

17

Val D. Wynn, 40 ECAB 666 (1989); see also P.S., Docket No. 10-1560 (issued June 23, 2011).

18

5 U.S.C. § 8103; 20 C.F.R. § 10.304.

6

exercise its discretion to determine whether medical care has been authorized or whether
unauthorized medical care involved emergency or unusual circumstances and is, therefore,
reimbursable regardless of whether the underlying claim for benefits has been accepted or
denied. The case will be remanded for further development of this issue.
CONCLUSION
The Board finds that OWCP properly found that appellant failed to meet his burden of
proof to establish that he sustained a left shoulder injury in the performance of duty on
April 20, 2010. The case will be returned to OWCP for consideration of whether his medical
expenses related to his treatment on April 20, 2010 should be reimbursed.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded for further
development consistent with this decision.
Issued: January 27, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7