United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, MILL NECK POST
OFFICE, Mill Neck, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0575
Issued: March 22, 2022

Case Submitted on the Record

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

On March 7, 2022 appellant filed an appeal from a January 13, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0575.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the January 13, 2021 decision was July 12, 2021. As appellant
did not file an appeal with the Board until March 7, 2022, more than 180 days after the
January 13, 2021 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -05 75 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0575, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0575 is dismissed.
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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RICKENBACKER AIR NATIONAL GUARD,
Columbus, OH, Employer
__________________________________________

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

Docket No. 16-0918
Issued: August 1, 2016

Case Submitted on the Record

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

JURISDICTION
On April 1, 2016 appellant filed a timely appeal from a December 17, 2015 merit
decision and a February 16, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a loss of smell
causally related to the February 2, 2002 employment incident; and (2) whether OWCP properly
denied appellant’s request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 30, 2015 appellant, then a 62-year-old former aircraft mechanic crew chief,
filed a Form CA-1 alleging that on February 5, 2002 he suffered from anosmia as a result of
1

5 U.S.C. § 8101 et seq.

being sprayed with aircraft deicing fluid at work.2 He stated that he was standing behind an
aircraft before launch while calling flight control. As appellant looked up, he noticed that mist
from the deicing fluid had covered his glasses. He related that he was not wearing any safety
gear. In a first report of injury, dated October 23, 2015, appellant reiterated his history of injury.
In a February 8, 2002 memorandum, a supervisor indicated that a counseling session was
held with appellant on February 7, 2002 regarding the deicing incident. Appellant informed the
supervisor that he had a persisent scent of deicing fluid throughout his nose. He first made
contact with the fluid while standing at the tail of an aircraft that was being spot sprayed before
launch as he called flight control. Appellant told the supervisor that he had made quite an effort
to get rid of the scent. The supervisor was informed by Master Sergeant (MSgt.) Timothy
Harding that drawing a blood sample was possible and that further tests would be performed.
In e-mails dated April 4, 2003 and September 8, 2006, MSgt. Harding addressed
scheduling medical treatment for appellant’s symptoms from the February 2002 incident.
In letters dated March 13, June 8, and July 9, 2015, Dr. Ashish R. Shah, a Board-certified
otolaryngologist, noted that appellant had a long history of loss of smell, seven to eight years
ago, after being sprayed in the nose with icing fluid. Appellant had frequent headaches in the
mid-facial region. He reported sinus issues, but doubted that he had allergies. Appellant denied
nasal obstruction. He had diminished smell and an off-balance issue. Dr. Shah performed an
ear, nose, and throat examination which was essentially normal, with the exception of
hypertrophic inferior turbinates. A nasal endoscopy after decongestion showed right nasal septal
deviation.
There was persistent inferior turbinate hypertrophy.
Middle meati and
sphenocethmoid recesses were clear. Superior nasal cavity and cribriform region appeared clear
of any lesions. Dr. Shah reviewed a brain magnetic resonance imaging (MRI) scan report. He
provided an impression of hyposmia, headaches and mid-facial pressure, nasal septal deviation,
inferior turbinate hypertrophy, recent rhinosinusitis, possible chronic sinusitis, anosmia,
disequilibrium, and presyncope. In the July 9, 2015 letter, Dr. Shah opined that appellant’s
complete smell loss was likely a toxic olfactory cleft injury from the deicing fluid to which he
was exposed years ago. He reported that he could not explain appellant’s dizziness, but it
appeared to be mild. In a preliminary report dated July 13, 2015, Dr. Shah described his excision
of the left posterior buccal lesion with closure and bilateral cerumen removal.
In a June 23, 2015 brain MRI scan report, Dr. Melissa B. Davis, a Board-certified
radiologist, provided an impression that no brain parenchymal abnormality was detected. There
was also no evidence of vestibular schwannoma or labyrinthitis.
In a November 17, 2015 letter, OWCP informed appellant of the deficiencies in his claim
and afforded him 30 days to submit additional factual and medical evidence. It also requested
that the employing establishment submit medical evidence, if appellant had been treated at its
medical facility.

2

On December 16, 2015 appellant advised OWCP that the time of his injury he was also a member of the
National Guard with dual status. He explained that he had to be a member of the National Guard to work as a
technician. Appellant related that he had retired from the military in 2009.

2

In a November 30, 2015 statement, appellant related that a few days after the February 2,
2002 incident, he asked his supervisor whether he smelled deicing fluid. The supervisor
responded in the negative. Appellant described his medical treatment and difficulty he had
getting assistance from the employing establishment regarding the filing of his occupational
disease claim (Form CA-2) for the February 2, 2002 incident.3 Appellant stated that he only lost
his sense of smell. He did not have any preexisting conditions. Appellant was not aware of any
exposure to irritants outside his federal employment and had never smoked.
A February 20, 2002 medical form report with, an unknown signature, listed appellant’s
complaints, provided a history that he was exposed to deicing fluid in his nostrils six weeks ago,
diagnosed chemical exposure, and advised that he could return to regular-duty work.
In a February 15, 2002 form incident report, MSgt. Harding noted appellant’s symptoms
of unusual smell and taste during periodic times of the day after his February 2, 2002 exposure.
He provided a history of injury that appellant was exposed to aircraft deicing fluid approximately
six weeks ago. Contact was made with his exposed face, (eyes were closed by glasses) and brief
inhalation. No rash or skin lesions had developed. However, there was a disturbing and
persistent lingering scent in appellant’s nostrils and acid taste in his mouth. MSgt. Harding
related that he was wearing protective gloves and splash goggles at the time of injury. He noted
that an investigation of the February 2, 2002 incident revealed that appellant’s short exposure
was minor. MSgt. Harding concluded that a physical examination and laboratory test results
showed no sign of overexposure.
In a December 17, 2015 decision, OWCP accepted that the claim was timely filed and
that the February 2, 2002 incident occurred as alleged. However, it denied appellant’s claim as
he had failed to submit a rationalized medical opinion to establish that any diagnosed medical
condition was causally related to the accepted employment incident.
In a January 22, 2016 appeal request form, received by OWCP on January 28, 2016,
appellant checked a box indicating his request for reconsideration. He did not submit additional
evidence or argument.
In a February 16, 2016 decision, OWCP denied further merit review of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5

3

In addition to filing a Form CA-1, appellant had previously filed an occupational disease claim (Form CA-2)
dated February 9, 2002 regarding the February 2, 2002 incident.
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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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.6
There are two components involved in establishing the 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.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury caused by the accepted February 2, 2002 employment incident. Appellant failed to submit
sufficient medical evidence to establish that his loss of smell was causally related to the accepted
employment incident.
Dr. Shah’s July 9, 2015 report listed essentially normal findings on examination with the
exception of hypertrophic inferior turbinates and provided an impression of anosmia,
disequilibrium, and presyncope. He opined that appellant’s complete smell loss was “likely” a
toxic olfactory cleft injury from the deicing fluid that to which he was exposed years ago, but his
opinion was equivocal and speculative in nature. His use of the term likely renders his opinion
speculative in nature.11 Further, Dr. Shah did not provide a firm medical diagnosis for
appellant’s dizziness or provide rationale as to how the condition was related to his exposure to
deicing fluid on February 2, 2002.12 His remaining reports provided a history of the February 2,
2002 work incident and examination findings, but did not offer an opinion relating appellant’s
diagnosed headaches and nasal conditions for which he underwent surgery to the accepted
incident. Medical evidence that does not offer any opinion regarding the cause of an employee’s

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

L.R. (E.R.), 58 ECAB 369 (2007); D.D., 57 ECAB 734 (2006); M.W., 57 ECAB 710 (2006); Ceclia M. Corley,
56 ECAB 662 (2005).
12

George A. Davis, Docket No. 95-1684 (issued April 3, 1997).

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condition is of limited probative value.13 For the reasons stated, the Board finds that Dr. Shah’s
reports are of diminished probative value and are insufficient to establish appellant’s claim.
Similarly, Dr. Davis’ June 23, 2015 diagnostic test results are of diminished probative
value. Her brain MRI scan report found no brain parenchyinal abnormality or evidence of
vestibular schwannoma or labyrinthitis. Dr. Davis did not opine that appellant had a medical
condition causally related to the accepted February 2, 2002 work incident.14
The February 20, 2002 medical form report, which was not legibly signed, has no
probative medical value, as it cannot be established that the author is a physician.15
Appellant has not submitted medical evidence from a physician explaining how the
February 2, 2002 work incident caused or contributed to his loss of smell. Therefore, the Board
finds that there is insufficient medical evidence to establish that appellant sustained a loss of
smell causally related to the accepted February 2, 2002 employment incident.
On appeal, appellant contends that the employing establishment falsely stated that he was
wearing protective gear at the time of injury. He also asserts that it covered up his injury by
changing the vendor of the deicing fluid and type of deicing fluid. Appellant further asserts that
the employing establishment retaliated against him for reporting unfair treatment of minorities to
higher management when it delayed assistance with the filing of his Form CA-1 and provision of
medical treatment. He stated that he has contact information for witnesses who support his
statements. However, the relevant issue is whether appellant sustained a loss of smell causally
related to the accepted February 2, 2002 employment incident. His assertions regarding false
statements, a cover-up, and retaliation by the employing establishment are not relevant to the
medical issue of whether he submitted sufficient medical evidence to establish causal
relationship.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,16
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.17 To be entitled to a merit review of an OWCP decision denying or
13

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
14

Id.

15

See D.D., supra note 11; Merton J. Sills, 39 ECAB 572, 575 (1988).

16

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(3).

5

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.18 Section 10.608(b) of the implementing regulations states that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.19
ANALYSIS -- ISSUE 2
Appellant disagreed with OWCP’s denial of his traumatic injury claim and requested
reconsideration.
In a January 22, 2016 appeal request form, received on January 28, 2016, appellant
requested reconsideration. He did not submit evidence or argument. OWCP denied
reconsideration by decision dated February 16, 2016, without reviewing the merits of his claim.
The only evidence appellant submitted on reconsideration was the January 22, 2016
appeal request form. He did not submit any additional evidence or argument. Therefore,
appellant provided nothing of relevance for OWCP to consider. The appeal form, on its own,
does not comprise a basis for reviewing the merits of the case.20
A claimant may be entitled to a merit review by showing that OWCP erroneously applied
or interpreted a specific point of law, advancing a relevant legal argument not previously
considered by OWCP, or submitting relevant and pertinent new evidence. Appellant did not
make any new submission in this case.
The Board accordingly finds that appellant failed to meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a loss of smell
causally related to the February 2, 2002 employment incident. The Board further finds that
OWCP properly denied appellant’s request for further merit review of his claim pursuant to
5 U.S.C. § 8128(a).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

20

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the February 16, 2016 and December 17, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY,
White Plains, NY, Employer
__________________________________________

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

Docket No. 17-0752
Issued: June 5, 2017

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 February 20, 2017 appellant, through counsel, filed a timely appeal from a January 4,
2017 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 met his burden of proof to establish a right knee condition
causally related to the accepted September 18, 2012 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, then a 50-year-old
automotive lead technician, filed a traumatic injury claim (Form CA-1) alleging that he injured
his right knee on September 18, 2012 as a result of stepping out of a vehicle while in the
performance of duty.4 He established fact of injury, but on August 12, 2013 OWCP’s Branch of
Hearings and Review affirmed the denial of the claim because he failed to establish a causal
relationship between the diagnosed right knee condition and the September 18, 2012
employment incident.5 Appellant subsequently appealed to the Board. In a decision dated
July 25, 2014, the Board affirmed the hearing representative’s August 12, 2013 decision.6
OWCP subsequently denied a request for reconsideration by decision dated November 13, 2014.
Appellant, through counsel, timely requested reconsideration. In a March 25, 2015 decision,
OWCP reviewed the merits of the claim, but denied modification. Appellant, through counsel,
appealed to the Board. By decision dated October 20, 2015, the Board affirmed OWCP’s
March 25, 2015 decision.7 The Board found that appellant had not met his burden of proof to
establish that his claimed right knee condition was causally related to the September 18, 2012
employment incident. The facts of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.8
On October 18, 2016 counsel requested reconsideration. In support of the request, he
submitted an October 18, 2016 report from Dr. Michael Foreman, a family practitioner.
Dr. Foreman indicated that he had reviewed appellant’s medical records in order to determine
whether causal relationship existed between his right knee injury and the September 18, 2012
work incident. He noted that appellant slipped while stepping out of a vehicle onto the front fork
of a lift and fell approximately two feet downward, landing on a twisted right knee, which caused
his joint to buckle and crack. Dr. Foreman found that appellant’s past medical history included
chronic, intermittent, and mild right knee pain and, according to his medical records, the
condition was responsive to nonoperative measures. He reviewed two right knee magnetic
resonance imaging (MRI) scans, dated March 30, 2010 and November 23, 2012, but did not
3

Docket No. 14-306 (issued July 25, 2014) and Docket No. 15-1301 (issued October 20, 2015).

4

Appellant stated that his foot slipped off the front rail of the lift and he twisted his right knee.

5

The hearing representative noted, inter alia, that there was evidence of a preexisting right knee condition, which
dated back to at least March 2010.
6

Docket No. 14-0306 (issued July 25, 2014).

7

Docket No. 15-1301 (issued October 20, 2015). The Board’s review included various diagnostic studies, as well
as several medical reports from appellant’s treating physician, Dr. Daniel Zelazny, a Board-certified orthopedic
surgeon.
8

See supra note 3.

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conduct a physical examination.9 Dr. Foreman opined that appellant’s claim should be accepted
for right knee lateral meniscus tear, lateral collateral ligament (LCL) sprain, and anterior cruciate
ligament (ACL) sprain. He based his assessment primarily on appellant’s two MRI scans and an
article published in the Journal of the American Academy of Orthopaedic Surgeons (AAOS).
Dr. Foreman opined that the mechanism and presentation described in the medical literature
mirrored that described by appellant and his treating physician, and was further supported by the
November 23, 2012 MRI scan findings. He also indicated that appellant’s claim should be
accepted for aggravation of right knee unilateral primary osteoarthritis, which he based on a
December 1990 article published in Seminars in Arthritis and Rheumatism. Dr. Foreman
explained that appellant possessed “two of the three risk factors associated with osteoarthritis of
the knee, two being occupationally related.” He opined that “repetitive wear” combined with the
maximal axial load with torsion that occurred at work on September 18, 2012 resulted in an
exacerbation of appellant’s underlying arthritic condition. Dr. Foreman concluded that
appellant’s right knee conditions were directly caused and/or exacerbated by acute trauma
sustained on September 18, 2012.
By decision dated January 4, 2017, OWCP denied modification of its prior decision,
finding that Dr. Foreman’s opinion was insufficient to establish causal relationship between the
diagnosed conditions and the accepted September 18, 2012 employment incident. The senior
claims examiner found that Dr. Foreman based his opinion on a review of the medical record and
various medical journals, but had not conducted his own physical examination.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.10
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.11 The second component is whether the employment incident caused a
personal injury.12 An employee may establish that an injury occurred in the performance of duty
9

Dr. Foreman also noted having reviewed the Board’s October 20, 2015 decision.

10

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

11

Elaine Pendleton, 40 ECAB 1143 (1989).

12

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

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as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.13
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.14
ANALYSIS
OWCP accepted that the September 18, 2012 employment incident occurred as alleged,
and also accepted that there was a medical diagnosis in connection with the employment
incident. However, it denied appellant’s traumatic injury claim finding that the medical evidence
of record was insufficient to establish causal relationship between the diagnosed condition and
the accepted employment incident. The issue is whether appellant’s right knee condition resulted
from the September 18, 2012 employment incident. The Board finds that appellant did not meet
his burden of proof to establish a causal relationship.
Dr. Foreman’s October 18, 2016 report is the only medical evidence received since
OWCP’s March 25, 2015 decision. He reviewed the medical evidence of record, including
appellant’s March 30, 2010 and November 23, 2012 right knee MRI scans, but he did not
personally examine appellant. Dr. Foreman found that appellant’s past medical history included
chronic, intermittent, and mild right knee pain. He diagnosed right knee lateral meniscus tear,
LCL sprain, and ACL sprain based on his review of the diagnostic studies and an article
published in the Journal of the AAOS. Dr. Foreman opined that the mechanism and presentation
described in the medical literature mirrored what had been described by appellant and his
treating physician, and was further supported by the November 23, 2012 right knee MRI
findings. He also diagnosed aggravation of unilateral primary osteoarthritis of the right knee
based on an article published in Seminars in Arthritis and Rheumatism. Dr. Foreman opined that
“repetitive wear” combined with the maximal axial load with torsion that occurred at work on
September 18, 2012 resulted in an exacerbation of appellant’s underlying arthritic condition. He
concluded that appellant’s right knee condition was causally related to the September 18, 2012
work incident.
The fact that a condition manifests itself during a period of employment is not sufficient
to establish causal relationship.15
A temporal relationship alone will not suffice.16
Dr. Foreman’s October 18, 2016 report did not include sufficient medical rationale explaining
how the September 18, 2012 employment incident either caused or contributed to appellant’s
current right knee condition. A physician’s opinion must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition(s) and appellant’s
13

Shirley A. Temple, 48 ECAB 404, 407 (1997).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

15

20 C.F.R. § 10.115(e).

16

See D.I., 59 ECAB 158, 162 (2007).

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specific employment factor(s).17 The need for rationale is particularly important because the
evidence indicates that appellant had a preexisting right knee condition.18 Additionally,
Dr. Foreman relied on various medical journals in forming his medical opinion. The Board has
held that newspaper clippings, medical texts, and excerpts from publications are of no
evidentiary value in establishing a causal relationship between a claimed condition and factors of
the employee’s federal employment, as such materials are of general application and are not
determinative of whether the specific condition claimed is related to the particular employment
factors alleged by the employee.19 For the above-noted reasons, the Board finds that
Dr. Foreman’s October 18, 2016 report is insufficient to establish causal relationship between
appellant’s current right knee condition and the September 18, 2012 employment incident.
As appellant has not submitted any rationalized medical evidence to support that his
claimed right knee condition is causally related to the September 18, 2012 employment incident,
he has failed to meet his burden of proof to establish entitlement to FECA benefits.
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 that his right
knee condition is causally related to the accepted September 18, 2012 employment incident.

17

Victor J. Woodhams, supra note 12.

18

See supra note 14.

19

See D.E., Docket No. 07-27 (issued April 6, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2017
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, JAMAICA TELESERVICE
CENTER, Jamaica, NY, Employer
__________________________________________

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

Docket No. 20-0196
Issued: June 24, 2020

Case Submitted on the Record

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

JURISDICTION
On November 4, 2019 appellant filed a timely appeal from an October 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 23, 2019, as she no longer had residuals or
disability causally related to her accepted employment condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 1994 appellant, then a 49-year-old teleservice representative, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome due to factors of her federal employment including performing repetitive work duties
seven hours per day. She noted that she first became aware of her condition in November 1993
and of its relationship to her federal employment on November 13, 1994. On the reverse side of
the claim form, the employing establishment indicated that appellant stopped work on
January 12, 1994.
On July 12, 1994 OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome
and paid her wage-loss compensation benefits on the daily rolls, commencing that date and on the
periodic rolls commencing August 7, 1996.
Following further development of the claim, OWCP subsequently received an August 11,
2018 medical report by Dr. Jay S. Aaron, an attending Board-certified internist. Dr. Aaron noted
that appellant had chronic low back pain secondary to degenerative joint disease. He also noted
that she ambulated poorly with a cane. Dr. Aaron included his August 8, 2018 report noting that
diagnostic testing confirmed the presence of bilateral carpal tunnel syndrome. He concluded that
appellant was unable to return to work.
On May 1, 2019 OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic
surgeon, for a second opinion evaluation, to determine whether she continued to have residuals or
disability related to her accepted employment injury.
In a June 24, 2019 report, Dr. Sultan noted that he had reviewed appellant’s medical
records and a statement of accepted facts. He noted her current complaints of being unable to
move her fingers, experiencing numbness in both hands and feet, feeling pain traveling up her
arms, and dropping objects. Dr. Sultan reported that his objective examination of both hands and
wrists revealed no abnormal orthopedic or neurological ﬁndings. He noted that appellant’s
subjective complaints did not correspond with his objective examination ﬁndings. Dr. Sultan
reviewed May 11, 2011 electrodiagnostic test results, which revealed bilateral carpal tunnel
syndrome; however, he indicated that this condition was not reflected on his examination. He
noted appellant’s prior diagnosis of bilateral carpal tunnel syndrome and maintained that his
examination did not confirm residual right or left carpal tunnel syndrome. Dr. Sultan advised that
her bilateral wrist condition was now in remission. He noted that bilateral Tinel’s and Phalen’s
testing failed to confirm any underlying neurological signs of carpal tunnel syndrome. Dr. Sultan
indicated that appellant’s work injury or employment factors temporarily precipitated her
condition which was now in remission. He concluded that, based on clinical presentation, she was
currently able to return to her date-of-injury job as a contact representative at the employing
establishment. Dr. Sultan explained that his opinion was based on the unremarkable bilateral hand
2

S.P., Docket No. 98-1322 (issued September 14, 2000).

2

and wrist examination ﬁndings. He further concluded that no further medical treatment was
indicated. In an accompanying work capacity evaluation (Form OWCP-5c), Dr. Sultan found that
appellant could work full time without restrictions.
By notice dated July 25, 2019, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits based on Dr. Sultan’s opinion that the accepted
condition had ceased without residuals. It afforded her 30 days to submit additional evidence or
argument challenging the proposed action.
OWCP subsequently received a July 24, 2019 attending physician’s report (Form CA-20)
by Dr. Aaron, who noted a November 1, 1993 date of injury and diagnosed C4-5 herniated discs;
bilateral carpal tunnel syndrome; degenerative joint disease of the spine; 1991 left knee tear; 2001
fibromyalgia; back, neck, and knee pain; and a leg fracture due to an October 2008 motor vehicle
accident. Dr. Aaron indicated that appellant had not been advised to return to work.
OWCP also received an August 16, 2019 report by Dr. Michael Nissenbaum, a Boardcertified neurologist, who indicated that he had performed an electromyogram and nerve
conduction velocity (EMG/NCV) testing of appellant’s bilateral wrists, which was consistent with
a bilateral advanced sensorimotor carpal tunnel syndrome, right worse than left, and right ulnar
sensory neuropathy.
In a letter dated September 4, 2019, OWCP requested that Dr. Sultan review
Dr. Nissenbaum’s August 16, 2019 EMG/NCV study and provide a well-rationalized opinion as
to whether appellant had any employment-related residuals or disability.
In an addendum report dated September 9, 2019, Dr. Sultan responded to OWCP’s
September 4, 2019 letter. He noted that Dr. Nissenbaum’s August 16, 2019 EMG/NCV study,
which revealed clinical signs of bilateral carpal tunnel syndrome, was not confirmed by his
June 24, 2019 examination. Dr. Sultan reiterated his prior opinion that appellant’s work-related
condition had clinically resolved and she could return to her date-of-injury position with no
restrictions, and that no further medical treatment was indicated.
OWCP, in a September 17, 2019 letter, requested that Dr. Sultan provide an additional
report which provided medical rationale explaining why the EMG/NCV study results were not
causally related to the accepted employment injury and a rationalized opinion as to whether
appellant’s accepted condition had resolved in light of these objective findings.
In a second addendum report dated September 25, 2019, Dr. Sultan noted that when he
examined appellant on June 24, 2019 she claimed that at times she experienced numbness in both
hands. He indicated that this was 26 years after she stopped performing work activities on
November 1, 1993. Dr. Sultan noted that appellant made no speciﬁc claim of numbness involving
the right or left first, second, third, and one-half of the fourth digits, but claimed that at times both
hands felt numb. He again indicated that his June 24, 2019 examination conﬁrmed intact sensation
of both hands without intrinsic muscle atrophy and noted that provocative testing in both hands
revealed negative Tinel’s and Phalen’s bilaterally. Dr. Sultan advised that, despite positive
electrodiagnostic readings, he was unable to confirm “triple correlation” in regard to the
underlying bilateral carpal tunnel syndrome. He noted that “triple correlation” would indicate

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positive electrical testing, positive symptoms, and positive examination ﬁndings. Dr. Sultan
further noted that positive electrical ﬁndings may be present through the electrical test, but not
depicted on clinical examination or on speciﬁc symptoms or claims. He maintained that these
electrical test findings were not reﬂected in his examination or in a speciﬁc claim of carpal tunnel
syndrome. Dr. Sultan explained that if appellant continued to have carpal tunnel syndrome for the
past 26 years, one would expect to ﬁnd positive examination ﬁndings, notably intrinsic muscle
atrophy, impaired sensation, and positive provocative testing. He again opined that she no longer
suffered from carpal tunnel syndrome and that the electrical tests were not reflected in her clinical
examination.
OWCP, by decision dated October 22, 2019, terminated appellant’s wage-loss
compensation and medical benefits, effective October 23, 2019, finding that Dr. Sultan’s opinion
was entitled to the weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.3 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 23, 2019.
The evidence of record establishes that, as of October 23, 2019, the date OWCP terminated
appellant’s wage-loss compensation and medical benefits, there was disagreement between
Dr. Sultan, OWCP’s second opinion physician, and Dr. Aaron, appellant’s treating physician, as
to whether appellant had residuals and disability from her accepted employment injury and the
3

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4
See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
5

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

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accepted condition of bilateral carpal tunnel syndrome. Further, the report of Dr. Sultan fails to
give appropriate consideration to the diagnostic testing studies completed by Dr. Nissenbaum
which demonstrated continuing bilateral advanced sensorimotor carpal tunnel syndrome, right
worse than left, and right ulnar sensory neuropathy.
Dr. Aaron has consistently opined that appellant continues to exhibit findings of bilateral
carpal tunnel syndrome and that she is unable to return to any employment position. He referred
her to Dr. Nissenbaum for diagnostic testing. In his August 16, 2019 report, Dr. Nissenbaum
indicated that he had performed EMG/NCV testing of appellant’s bilateral wrists, which was
consistent with a bilateral advanced sensorimotor carpal tunnel syndrome, right worse than left,
and right ulnar sensory neuropathy. Dr. Aaron cited to the findings of Dr. Nissenbaum in opining
that appellant was unable to return to work.
OWCP relied upon the second opinion findings of Dr. Sultan in finding that appellant had
no continuing residuals or disability in terminating her wage-loss compensation and medical
benefits. Dr. Sultan noted that his June 24, 2019 examination conﬁrmed intact sensation of both
of her hands without intrinsic muscle atrophy and noted that provocative testing in both hands
revealed negative Tinel’s and Phalen’s bilaterally.
He advised that, despite positive
electrodiagnostic readings, he was unable to confirm “triple correlation” in regard to the
underlying bilateral carpal tunnel syndrome. Dr. Sultan noted that “triple correlation” would
indicate positive electrical testing, positive symptoms, and positive examination ﬁndings. He
acknowledged Dr. Nissenbaum’s testing, but indicated that positive electrical ﬁndings may be
present through the electrical test, but not depicted on clinical examination or on speciﬁc symptoms
or claims. Dr. Sultan maintained that these electrical test findings were “not reﬂected” in his
examination. He explained that if appellant continued to have carpal tunnel syndrome for the past
26 years, one would expect to ﬁnd positive examination ﬁndings, notably intrinsic muscle atrophy,
impaired sensation, and positive provocative testing. Dr. Sultan concluded, therefore, that she no
longer suffered from carpal tunnel syndrome and that the electrical tests were not reflected in her
clinical examination. The Board finds that his report is insufficient for OWCP to meet its burden
of proof to establish that appellant has no residuals of disability due to her accepted condition.
First, Dr. Sultan’s opinion is contradicted by the physical findings of Dr. Aaron and
Dr. Nissenbaum and by the opinion of Dr. Aaron who finds her unable to return to any
employment.8 Second, Dr. Sultan’s opinion is based upon his requirement of a “triple correlation”
standard which is not reflective of appellant’s current physical examination findings and diagnostic
testing results, but is instead a requirement of general application and are not determinative as they
are not based directly upon her current presentation.9 The Board therefore finds that OWCP
improperly relied upon the opinion of him as the basis for terminating her continuing compensation
benefits.

8
5 U.S.C. § 8123(a). See also R.C., Docket No. 18-0463 (issued February 7, 2020); G.B., Docket No. 16-0996
(issued September 14, 2016) (where the Board held that OWCP improperly terminated the claimant’s wage-loss
compensation and medical benefits as there was an unresolved conflict of medical opinion between her treating
physician and a second opinion specialist).
9
L.C., Docket No. 17-1811 (issued March 23, 2018); N.B., Docket No. 14-1702 (issued December 29, 2014); S.A.,
Docket No. 13-1551 (issued December 17, 2013); Gloria J. McPherson, 51 ECAB 441 (2000).

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Thus, the Board finds that OWCP has not met its burden of proof to terminate appellant
wage-loss compensation and medical benefits, effective October 23, 2019.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 23, 2019.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 24, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF THE ARMY, OAKLAND
ARMY BASE, Oakland, CA, Employer
__________________________________________

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

Docket No. 10-1581
Issued: April 1, 2011

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 May 24, 2010 appellant filed a timely appeal from an April 30, 2010 merit decision of
the Office of Workers’ Compensation Programs regarding a schedule award claim. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained more than a 36 percent
permanent impairment of the left foot, for which she received a schedule award.
On appeal, appellant asserted that a second opinion physician found that her accepted
conditions had not resolved.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on May 12, 1989 appellant, then a 37-year-old family child care
clerk, sustained a fracture of the fifth metatarsal of the left foot and a sprain of the
calcaneofibular ligament of the left ankle when she stepped off a curb and twisted her ankle.
Appellant was followed by Dr. Henry M. Daniels, an attending Board-certified orthopedic
surgeon, who advised that she reached maximum medical improvement as of December 8, 1990,
with residual chronic fibromyalgia and arthralgia of the left foot and ankle with osteoarthritis of
the talonavicular joint.
The Office determined that appellant was entitled to a schedule award. In an August 23,
1990 report, an Office medical adviser reviewed Dr. Daniels’ reports and found the following
impairments in the left lower extremity: six percent due to moderate impairment to the tibial and
medial calcaneal nerves; one percent for impairment of the deep peroneal nerve; seven percent
for dorsiflexion of the left ankle limited to 0 degrees; five percent for plantar flexion limited to
25 degrees; three percent for left ankle eversion limited to 5 degrees; and four percent for left
ankle inversion limited to 4 degrees. He combined the impairments to equal a 36 percent
impairment of the left foot or 25 percent impairment of the left lower extremity.
By decision dated April 17, 1991, the Office granted appellant a schedule award for a 36
percent impairment of the left foot. The period of the award ran from December 8, 1990 to
May 7, 1992.2
Appellant remained under medical care. In a January 10, 1996 report, Dr. Andrew B.
Wallach, an attending orthopedic surgeon, found no residuals of the May 12, 1989 injury.
Dr. Noel Silan, an attending podiatrist, treated appellant for left ankle pain and tarsal tunnel
syndrome in 1999 and 2000. In reports from February 2002 to December 2004, Dr. Jack H.
Stehr, an attending Board-certified orthopedic surgeon, diagnosed chronic left foot pain.
Beginning in November 2006, appellant was followed by Dr. Edward R. Cohen, a podiatrist,
who diagnosed plantar fasciitis, tarsal tunnel syndrome and left ankle instability. On
December 18, 2009 Dr. Cohen requested that the Office authorize plantar fasciitis surgery on
appellant’s left heel.3
On September 7, 2009 appellant claimed an additional schedule award. The Office then
obtained a second opinion from Dr. Kenneth N. Adatto, a Board-certified orthopedic surgeon. A
copy of the medical record and statement of accepted facts were provided for his review. In a
December 14, 2009 report, Dr. Adatto observed moderate swelling of the left ankle and foot, and
restricted range of left ankle motion. He obtained x-rays showing osteophyte formation on the
plantar surface of the left ankle joint. Dr. Adatto diagnosed a left calcaneal spur and
sprains/strains of the left foot and ankle. He opined that appellant had reached maximum
medical improvement on December 8, 1990, with residuals of weak calcaneofibular ligaments
predisposing her to tarsal tunnel syndrome and tenosynovitis. Referring to Figure 16-2, page 498
2

On its face, the April 17, 1991 decision refers to the right foot instead of the left. The Board finds that this is a
nondispositive typographical error.
3

There is no decision of record regarding Dr. Cohen’s surgical request.

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of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, “A.M.A., Guides”),4 Dr. Adatto found a three percent impairment of the
left lower extremity due to a calcaneal spur and a three percent impairment of the left lower
extremity due to an ankle sprain/strain.
The Office requested that an Office medical adviser review the medical record and
provide an impairment rating according to the sixth edition of the A.M.A., Guides. In a
January 27, 2010 report, the Office medical adviser reviewed the record and concurred that
appellant had reached maximum medical improvement as of December 8, 1990. He opined that
she had a one percent impairment of the left leg due to clinical instability of the left ankle
according to Table 16-2, page 5025 of the sixth edition of the A.M.A., Guides. The Office
medical adviser found a Class I or mild impairment with a default grade of C. He noted a CDX
(impairment class for the diagnosed condition) of one, a GMFH (grade modifier based on
functional history) of two, a GMPE (grade modifier for physical examination) of one and a
GMCS (grade modifier for clinical studies) of zero. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), equaling (2-1) + (1-1) + (0-1) or 1 + 0 +
-1, the Office medical adviser found a grade modifier of zero. He concluded that appellant had a
one percent impairment of the left lower extremity. In a March 22, 2010 addendum, the medical
adviser found that she was not entitled to an additional schedule award as she did not have more
than the 36 percent impairment of the left foot previously awarded.
By decision dated April 30, 2010, the Office denied appellant’s claim for an increased
schedule award as the medical evidence did not establish impairment greater than the 36 percent
previously awarded. It found that both Dr. Adatto and the Office medical adviser opined that
appellant did not have more than a 36 percent impairment of the left foot.
LEGAL PRECEDENT
The schedule award provisions of the Act6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized 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 Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 For schedule awards after May 1,

4

Figure 16-2, page 498 of the sixth edition of the A.M.A., Guides is entitled “Lower Extremity Evaluation
Record.”
5

Table 16-2, page 502 of the sixth edition of the A.M.A., Guides is entitled “Foot and Ankle Regional Grid -Lower Extremity Impairments.”
6

5 U.S.C. §§ 8101-8193.

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2008.8
The sixth edition of the A.M.A., Guides provide a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition of the A.M.A., Guides the evaluator identifies the
most relevant impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).
ANALYSIS
The Office accepted that appellant sustained a fracture of the fifth metatarsal of the left
foot and a sprain of the calcaneofibular ligament of the left ankle. On April 17, 1991 appellant
received a schedule award for a 36 percent impairment of the left foot. She claimed an
additional schedule award on September 7, 2009.
The Office obtained a second opinion from Dr. Adatto, a Board-certified orthopedic
surgeon, who found a six percent impairment of the left lower extremity due to a heel spur and
ankle sprain/strain. An Office medical adviser opined that appellant had only a one percent
impairment of the left foot due to instability of the left ankle. He opined that she was not entitled
to an additional schedule award as the medical evidence did not support an increased percentage
of left foot impairment above the 36 percent awarded on April 17, 1991. By April 30, 2010
decision, the Office denied appellant’s claim for an additional schedule award.
The Board finds that the Office medical adviser applied the appropriate tables and
grading schemes of the sixth edition of the A.M.A., Guides to Dr. Adatto’s clinical findings. The
Office medical adviser used the grade modifier adjustment formula to determine that the
diagnosis-based percentage did not require modification. The Board notes that his mathematical
calculations were correct. Also, there is no medical evidence of record utilizing the appropriate
elements of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of
permanent impairment. Therefore, the Office properly relied on the Office medical adviser’s
assessment of a one percent impairment of the left foot.
On appeal, appellant asserted that Dr. Adatto opined that the accepted injuries had not
resolved. As stated, Dr. Adatto found a left ankle sprain/strain. However, both Dr. Adatto and
the Office medical adviser found that the ankle sprain or instability did not establish a greater
percentage of impairment than previously awarded. Therefore, the evidence does not establish
entitlement to an additional schedule award.
8

FECA Bulletin 09-03 (issued March 15, 2009).

9

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
10

Id. at pp. 494-531.

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CONCLUSION
The Board finds that appellant has not established that she sustained more than a 36
percent impairment of the left foot, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2010 is affirmed.
Issued: April 1, 2011
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

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

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-488
Issued: October 27, 2011

Case Submitted on the Record

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

JURISDICTION
On December 16, 2010 appellant filed a timely appeal from a June 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 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 has established that he sustained neck, low back, bilateral
lower extremity and bilateral arm conditions in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. On May 30, 2008 appellant, a retired
54-year-old letter carrier, filed a claim for benefits, alleging that he developed neck, low back,
bilateral lower extremity and bilateral arm conditions causally related to employment factors. By
decision dated September 15, 2008, OWCP denied the claim finding that appellant failed to
1

5 U.S.C. § 8101 et seq.

submit medical evidence sufficient to establish that he sustained the claimed conditions in the
performance of duty. By letter dated September 25, 2008, appellant’s attorney requested an oral
hearing, which was held on January 13, 2009.
In an April 24, 2008 report, Dr. Steven A. Norris, a specialist in internal medicine, noted
that appellant had initially sustained a work-related injury in 1984. He advised that appellant had
been experiencing increased neck pain and bilateral leg pain with pain down the legs and right
hip pain, with possible bursitis. Dr. Norris stated that he had been treating appellant for cervical
radiculopathy, occipital neuralgia, enthesopathy, thoracic pain, sciatica, sacroiliitis, lumbar
radiculopathy, restless legs syndrome, ulnar neuropathy elbow, bilateral carpal tunnel syndrome,
and neck pain. He stated that appellant had responded to injections for the neck and back and
might also have bursitis as well. Dr. Norris noted that appellant chose to continue with
conservative care; he recommended that he be referred to an orthopedist for his right hip pain, in
addition to acupuncture and orthotics for his back.
In a report dated August 26, 2008, Dr. Norris advised that appellant was experiencing a
worsening of occipital neuralgia, sciatica and sacroilitis. He stated that appellant had responded
to injections, but opined that the numbness in the legs may not improve. Dr. Norris also noted
severe worsening of his neck and low back pain in addition to bilateral arm pain.
By decision dated April 7, 2009, an OWCP hearing representative affirmed the
September 15, 2008 decision.
In a May 21, 2010 decision,2 the Board set aside OWCP’s April 7, 2009 decision, finding
that the hearing representative erred by failing to consider the medical reports from Dr. Norris.
The Board remanded to OWCP for consideration of Dr. Norris’ reports and a redetermination of
whether appellant’s claimed neck, low back, bilateral lower extremity and bilateral arm conditions
were sustained in the performance of duty. The complete facts of this case are set forth in the
Board’s May 21, 2010 decision and are herein incorporated by reference.
By decision dated June 21, 2010, an Office hearing representative denied the claim. She
found that appellant failed to submit medical evidence sufficient to establish that his claimed
neck, low back, bilateral lower extremity and bilateral arm conditions were sustained in the
performance of duty.
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
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

2

Docket No. 09-2177 (issued May 21, 2010).

3

5 U.S.C. §§ 8101-8193.

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causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed neck, low back, bilateral lower
extremity and bilateral arm conditions and his federal employment. This burden includes
providing medical evidence from a physician who concludes that the disabling condition is
causally related to employment factors and supports that conclusion with sound medical
reasoning.7
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that his claimed sustained neck, low back, bilateral lower extremity and bilateral arm conditions
were related to factors of his employment. For this reason, he has not discharged his burden of
proof.
In support of his claimed conditions appellant submitted reports from Dr. Norris, who
stated in his April 24, 2008 report that he had initially sustained a work-related injury in 1984.
He advised that he had been treating appellant for cervical radiculopathy, occipital neuralgia,
enthesopathy, thoracic pain, sciatica, sacroiliitis, lumbar radiculopathy, restless legs syndrome,
ulnar neuropathy elbow, bilateral carpal tunnel syndrome, and neck pain. Dr. Norris opined that
4

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

5

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

6

Id.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

appellant had been experiencing increased neck pain and bilateral leg pain with pain down the
legs and right hip pain, with possible bursitis.
Appellant’s conditions were treated
conservatively. In his August 26, 2008 report Dr. Norris asserted that he had experienced a
worsening of his neck and low back pain in addition to bilateral arm pain occipital neuralgia,
sciatica and sacroiliitis conditions. While appellant’s back condition was ameliorated by
injections, he asserted that the numbness in his legs might not improve.
None of the reports submitted by Dr. Norris provided rationalized medical opinion
addressing how the claimed conditions or disability was causally related to his employment
duties. 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.8 Dr. Norris did not sufficiently describe appellant’s job duties
or explain the medical process through which such duties would have been competent to cause
the claimed conditions. Accordingly, his reports did not sufficiently explain how appellant’s
diagnosed conditions resulted from factors of his employment. Dr. Norris did not address
appellant’s preexisting conditions in any detail or how appellant’s work duties were competent to
cause these conditions.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his conditions were caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed neck, low back, bilateral lower extremity and bilateral arm conditions
were causally related to his employment.
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 failed to meet his burden of proof in establish that his
claimed neck, low back, bilateral lower extremity and bilateral arm conditions were sustained in
the performance of duty.

8

See Anna C. Leanza, 48 ECAB 115 (1996).

9

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

10

See Anna C. Leanza, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 27, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVY YARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-934
Issued: December 14, 2010

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 February 19, 2010 appellant filed a timely appeal from the November 19, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning wage-loss compensation
after July 24, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.1
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for total disability
after July 24, 2006.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
The Office accepted that on October 19, 1970 appellant, then a 40-year-old shipyard
worker, sustained chondromalacia patella bilateral and synovitis of the left and right knees due to
a fall at work. It authorized a right total synovectomy and patella debridement, left total
synovectomy and patellar prosthesis and right partial synovectomy with patellar prosthesis.
Appellant stopped work for intermittent periods before stopping work entirely in January 1972.
He received compensation for total wage loss.
In a December 10, 1979 decision, the Office determined appellant’s loss of wage-earning
capacity as a marine draftsman. The restrictions of the sedentary position included no lifting
over 10 pounds and working indoors. The record indicated that appellant had completed a
course of training in drafting in December 1975 and the medical evidence showed that the
position was within his medical restrictions. The Office found that appellant had a wage-earning
capacity of 47 percent and it reduced appellant’s compensation to reflect his loss of wageearning capacity. Appellant elected to retire on disability retirement benefits.
Appellant’s case was inactive for a number of years. In 2008 the Office received a
December 8, 2005 report from Dr. Peter F. Sharkey, an attending Board-certified orthopedic
surgeon, who stated that appellant presented with right knee problems. Appellant reported that
he had been doing well following his patellar replacements until recently and noted that his left
knee was fine. Dr. Sharkey provided a diagnosis of degenerative joint disease of the right knee
and stated that right total knee replacement should be considered. On December 6, 2005
Dr. Matthew Pepe, an attending Board-certified orthopedic surgeon, reported that magnetic
resonance imaging scan testing showed a loose body in the right suprapatellar pouch. He opined
that appellant’s symptoms were due to patellofemoral wear and loosening of the patellar
component.
In an April 30, 2008 report, Dr. William DeLong, an attending Board-certified orthopedic
surgeon, advised that he first saw the claimant on January 9, 2006. Following his 1970 work
injury, appellant had treatment that included replacements of the undersurface of the patella
bilaterally. Dr. DeLong stated that appellant’s right knee was much worse than the left and, on
January 24, 2006, he performed a right total knee arthroplasty. He noted that by March 20, 2006
appellant was minus 3 degrees of full extension, there was flexion to 105 degrees and the implant
was in a good position without sign of loosening. Dr. DeLong asserted that the need for knee
replacements was based in part on the original accident because it was the start of the
degenerative process that evolved over the years and culminated in significant enough
degenerative change to warrant a total knee replacement.
On May 15, 2008 appellant filed a claim for recurrence of disability indicating that as of
January 24, 2006 he was again totally disabled due to the effects of his 1970 work injury.
Dr. Arnold T. Berman, an Office medical adviser, reviewed the record on
September 10, 2008. He noted that appellant underwent operative procedures of both knees to
alleviate the chondromalacia of the patella, an accepted condition. Appellant previously
underwent patellar replacements with patellar prostheses, but total knee replacements were not
done. Dr. Berman stated that there was associated osteoarthritis of both knees that had

2

developed and would have been expected to develop following many years of chondromalacia of
the patella. He agreed with Dr. DeLong that appellant’s knee replacements were required
because of a degenerative process that evolved over the years. The Office medical adviser stated
that the right total knee replacement Dr. DeLong performed on January 24, 2006 should be
considered work related.
The Office approved appellant’s claim for recurrence of disability. It subsequently
sought a second opinion from Dr. Robert Draper, a Board-certified orthopedic surgeon, who
examined appellant on November 10, 2008. In a November 14, 2008 report, Dr. Draper
discussed appellant’s history, medical records and examination findings. He opined that six
months following the January 24, 2006 surgery, appellant would have been able to return to
sedentary work with no lifting over 10 pounds.
In a December 3, 2008 letter, the Office advised appellant that he was eligible for total
disability compensation for six months following his surgery, until July 24, 2006. After that
date, he could elect either compensation based on his loss of wage-earning capacity or retirement
benefits. The Office subsequently issued appellant a payment for total disability compensation
covering the period January 24 to July 24, 2006. It reinstated his compensation at the rate
representing his loss of wage-earning capacity.
In an April 27, 2009 decision, the Office denied appellant’s claim for total disability
compensation subsequent to July 24, 2006.
A video hearing was held with an Office hearing representative on September 8, 2009.
Appellant testified that he had not been able to drive for five years and that he had difficulty with
walking. He asserted that his January 2006 surgery did not help his right knee and stated that he
continued to have persistent pain. Appellant claimed that he could not perform the marine
draftsman job because he was old, had poor vision and could not stand or sit for long periods.
His attorney contended that, after accepting that appellant was totally disabled, the Office had the
burden to establish that he was no longer totally disabled. Counsel claimed that appellant should
have been paid at a recurrent pay rate when he became totally disabled in January 2006. He also
asserted that appellant could not perform the marine draftsman job.
In a November 19, 2009 decision, an Office hearing representative affirmed the April 27,
2009 decision.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proof of
establishing that he was disabled as a result of the accepted employment injury.2 Once the
Office 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

2

See Sandra D. Pruitt, 57 ECAB 126 (2005).

3

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

3

Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his wageearning capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.4 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.5 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.6 The
fact that an employee has been unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in his commuting area.7
When the Office 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 the Office or to an Office 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 regard to his physical limitations,
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. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.8
Section 8101(4) of the Act defines “monthly pay” for purposes of computing
compensation benefits as follows: “[T]he monthly pay at the time of injury, or the monthly pay
at the time disability begins, or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater....”9

4

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

5

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

6

Id.

7

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

8

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953). Once a loss of wage-earning capacity is determined, a modification of
such a determination is not warranted unless there is a material change in the nature and extent of the employmentrelated condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was in fact erroneous. The burden of proof is on the party attempting to show that the award should
be modified. George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
9

5 U.S.C. § 8101(4).

4

ANALYSIS
In the present case, the Office followed the requisite procedures to determine that
appellant had the wage-earning capacity of a marine draftsman. It adjusted his compensation
accordingly in a December 10, 1979 decision. Appellant did not present any evidence showing
that this wage-earning capacity determination was erroneous.10 The record reflects that he later
developed a need for right knee replacement surgery. The Office approved the procedure which
took place on January 24, 2006 and determined that, by July 24, 2006, appellant had recovered
sufficiently to return to his loss of wage-earning capacity.
The Office found that appellant was entitled to compensation for total disability only for
six months following his surgery. It advised him that the medical evidence demonstrated that he
was not totally disabled after that time. Counsel contends that the Office has the burden to
establish that appellant did not have total disability after July 24, 2006; however, it only accepted
total disability for a short period due to surgery. There is no medical evidence showing that
appellant was totally disabled after July 24, 2006. Dr. DeLong, the attending Board-certified
orthopedic surgeon who performed the surgery, indicated that within two months of the surgery
appellant was doing very well. In a November 14, 2008 report, Dr. Draper, a Board-certified
orthopedic surgeon who served as an Office referral physician, advised that six months following
the January 24, 2006 surgery, appellant would have been able to return to sedentary work with
no lifting over 10 pounds.
The medical evidence of record supports that appellant was no longer totally disabled
after July 24, 2006 but was capable of performing duties that conformed to those of the marine
draftsman position.11
CONCLUSION
The Board finds that appellant is not entitled to wage-loss compensation for total
disability after July 24, 2006.

10

Counsel argued before the Office and on appeal that appellant could not perform the marine draftsman position,
but there is no medical evidence that appellant could not perform the limited physical requirements of the position or
that the position was vocationally unsuitable.
11

Counsel argued that appellant should receive a recurrent pay rate. However, he did not present evidence
showing that the recurrence in question began more than six months after appellant resumed regular full-time federal
employment. See supra note 9. Appellant did not present any argument that the wage-earning capacity
determination should have been modified. Moreover, his temporary disability caused by the January 2006 surgery
would not represent a material change in his employment-related condition. See supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT that the November 19, 2009 decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: December 14, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 15-1911
Issued: December 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 22, 2015 appellant filed a timely appeal from a September 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on July 14, 2015.
FACTUAL HISTORY
On July 14, 2015 appellant, then a 20-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a work-related right toe sprain at 10:30

1

5 U.S.C. § 8101 et seq.

a.m. on Tuesday, July 14, 2015.2 She indicated that the injury occurred on the second floor of
the Main Post Office Building in Denver, CO. Regarding the cause of the claimed injury,
appellant noted, “Stubbed right toe on curb.” She stopped work on July 14, 2015 and later
returned to work for eight hours per day.
Appellant submitted several reports, dated beginning July 14, 2015, in which an attending
physician diagnosed right foot sprain and sprain of the right fifth toe and recommended that she
return to work with restrictions. A Duty Status Report (Form CA-17) dated July 14, 2015, noted
“toe contusion” as the diagnosis.3
In an August 4, 2015 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim.4 It indicated that the documentation received to date
had been reviewed, and was found to be insufficient as it did not establish that she actually
experienced the incident or employment factor alleged to have caused injury. Moreover, a
physician’s opinion as to how the incident resulted in the condition diagnosed had not been
provided. OWCP requested that appellant complete and submit an enclosed questionnaire within
30 days which directed her to provide additional information, including the following:
“1. State where you were and what you were doing at the time your injury
occurred. Provide a detailed description as to how your injury occurred. (For
example, if you fell, state how far you fell, how you landed, etc. If lifting was the
cause of the injury, describe the object handled, its weight, what you did with it,
etc.)
“2. State the immediate effects of the injury and what you did immediately thereafter.
“3. Did you have any similar disability or symptoms before the injury? If so,
describe the prior condition. Please send records of all prior treatment.”
Appellant submitted August 5 and 21, 2015 reports in which her attending physician
assistant again diagnosed right foot sprain and sprain of the right fifth toe and recommended that
she return to modified work. These reports also list an injury date of July 14, 2015.
In an August 21, 2015 Duty Status Report, an attending physician listed the date of injury
as July 14, 2015 and the mechanism of injury as “Stubbed right toe.” The physician diagnosed
metatarsophalangeal joint pain due to the reported July 14, 2015 injury and recommended work
restrictions for appellant.
In a record of a September 10, 2015 telephone conversation, an OWCP employee noted
that she spoke to appellant and advised her that OWCP had not received her response to the
2

On the same form, appellant’s immediate supervisor indicated that appellant’s regular work hours were 8:30
a.m. to 4:00 p.m., but the supervisor did not specify the particular days of the week she usually worked. The
supervisor checked a box marked “yes” indicating that the claimed injury occurred in the performance of duty.
3

The physician’s signature on this form is illegible.

4

The August 4, 2015 letter was sent to appellant’s proper address of record.

2

questionnaire. Appellant asserted that she did not receive OWCP’s August 4, 2015 letter and
questionnaire.
By decision dated September 10, 2015, OWCP denied appellant’s claim for a workrelated July 14, 2015 injury. It discussed the evidence submitted by appellant and noted:
“You have established that you are a Federal civilian employee who filed a timely
claim; however, after a thorough review of all evidence, your claim is denied
because the factual component of the third basic element, Fact of Injury, has not
been met.
“Specifically your case is denied because the evidence is not sufficient to
establish that the event(s) occurred as you described. The reason for this finding
is that you did not respond to the questionnaire that was sent to you with the
development letter that would establish the factual component of your claim.
“Based on these findings, your claim is denied on the factual component of the
third basic element, Fact of Injury, because the evidence does not support that the
injury and/or event(s) occurred. The requirements have not been met for
establishing that you sustained an injury as defined by FECA.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period 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.5 These are the essential elements of each 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 the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.7 Second, the employee must submit

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
7

Julie B. Hawkins, 38 ECAB 393 (1987).

3

evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
ANALYSIS
Appellant alleged that she sustained a work-related right toe sprain at 10:30 a.m. on
Tuesday, July 14, 2015. Regarding the cause of the claimed injury, appellant noted, “Stubbed
right toe on curb.”
The Board finds that appellant has not established her claim for a work-related injury
because she did not establish the fact of injury aspect of the claimed July 14, 2015 injury.9
Appellant did not describe her claimed injury with sufficient specificity to determine whether the
injury occurred in the performance of duty. Her brief description of the injury does not allow a
determination that she actually experienced the employment incident at the time, place, and in
the manner alleged.10 Although appellant provided the time and place of the claimed July 14,
2015 injury she did not adequately describe the mechanism of the injury, or what she was doing
at the time of the injury.
OWCP requested that appellant provide additional details regarding the claimed July 14,
2015 injury by responding to a questionnaire attached to an August 4, 2015 development letter it
sent to her. However, appellant did not respond to OWCP’s request within the allotted time. In
a record of a September 10, 2015 telephone conversation, appellant claimed that she had not
received OWCP’s August 4, 2015 letter and questionnaire. Absent evidence to the contrary, a
letter properly addressed and mailed in the ordinary course of business is presumed to have been
received. This is known as the mailbox rule.11 OWCP’s August 4, 2015 letter and questionnaire
were sent to appellant’s address of record and are presumed to have been received by her absent
any notice of nondelivery. Appellant has not submitted evidence to rebut this presumption.
For these reasons, appellant has not met her burden of proof to establish an injury in the
performance of duty on July 14, 2015. She 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 did not meet her burden of proof to establish an injury in
the performance of duty on July 14, 2015.

8

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

9

There is no dispute that appellant is an “employee of the United States” within the meaning of FECA. See supra
note 4.
10

See supra note 6.

11

See James A. Gray, 54 ECAB 277 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT September 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5