United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., 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. 16-1206
Issued: November 17, 2016

Case Submitted on the Record

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

JURISDICTION
On May 18, 2016 appellant filed a timely appeal from a February 19, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right ankle sprain in the performance of duty on December 19, 2015.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its February 19, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On December 19, 2015 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that same date she sustained a right ankle sprain when she
descended porch steps while delivering mail. Appellant noted that the injury occurred at 4:00
p.m. at a specific address. On the reverse side of the claim form, appellant’s supervisor checked
the box marked “no” when asked if his knowledge of the facts about the injury agreed with the
employee’s statement. The supervisor explained that appellant had noted that the customer had
heard the snap of her ankle and saw her fall to the ground, but he had not yet conducted an
interview with the customer.
By letter dated January 14, 2016, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised as to the medical and factual
evidence required to support her claim and was afforded 30 days to provide the requested
evidence. Specifically OWCP noted that the evidence was insufficient to establish that she
actually experienced the incident or employment factor alleged to have caused injury as there
was no diagnosis of any condition, nor was there a physician’s opinion as to the cause of her
injury. It provided a questionnaire for completion requesting that appellant describe the
immediate effects of the injury and what she did thereafter; describe her condition between the
date of injury and the date she first received medical attention; whether she sustained any other
injury, either on or off duty, between the date of injury and the date it was first reported; the
nature and frequency of any home treatment; whether she had any similar disability or symptoms
prior to the injury; and to provide statements from any persons who witnessed her injury or had
immediate knowledge of it. She was provided 30 days to provide the requested information.
In support of her claim, appellant submitted medical reports and duty status reports
(Forms CA-17) dated December 23, 2015 through January 4, 2016 from Dr. Kathy Vidlock,
Board-certified in family medicine, documenting appellant’s treatment for a right ankle injury.
In her report dated December 23, 2015, Dr. Vidlock noted that appellant reported that the injury
occurred at work on December 19, 2015 after she had delivered a package on a customer’s
porch. As she was descending the stairs, her ankle popped out to the right, over the edge of a
step, causing her to fall. Review of a December 19, 2015 x-ray of the right ankle revealed no
fractures or bony abnormality. Dr. Vidlock provided physical examination findings and
diagnosed right ankle sprain. In a report dated January 25, 2016, he related appellant’s
examination findings and concluded that appellant’s right ankle still caused occasional pain, but
was back to full range of motion and strength.
A January 19, 2016 employing establishment form was submitted documenting
appellant’s resignation.
By decision dated February 19, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that the December 19, 2015 employment incident occurred
at the time, place, and in the manner alleged. It noted that she failed to establish fact of injury
because she did not respond to the questionnaire that was sent with the January 14, 2016
development letter.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim, including the fact that the individual is an “employee of the United States”
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
When an employee claims that she sustained an injury in the performance of duty she
must submit sufficient evidence to establish that she experienced a specific event, incident, or
exposure occurring at the time, place, and in the manner alleged. She must also establish that
such event, incident, or exposure caused an injury.7 Once an employee establishes that she
sustained an injury in the performance of duty, she has the burden of proof to establish that any
subsequent medical condition or disability for work, for which she claims compensation is
causally related to the accepted injury.8

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

6

Betty J. Smith, 54 ECAB 174 (2002).

7

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined).
8

Supra note 3.

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ANALYSIS
The Board finds that appellant has established that she sustained the December 19, 2015
employment incident as alleged. The evidence of record does not contain any inconsistencies
sufficient to cast doubt that the alleged incident occurred.
Appellant has provided sufficient detail to establish the traumatic incident.9 On her Form
CA-1, appellant stated that she sustained a right ankle sprain when she descended porch steps
while delivering mail. Appellant provided the exact time and address of the incident.10 She also
filed her claim on the same date.11 The record indicates that appellant was seen in a hospital
emergency room and an x-ray was taken of appellant’s right ankle on the date of injury.12
Appellant’s supervisor did not directly controvert appellant’s claim, but rather indicated that he
had not yet investigated the alleged incident. The Board also notes that Dr. Vidlock described
the December 19, 2015 employment incident in her reports of record. Under the circumstances
of this case, the Board finds that appellant’s allegations have not been refuted by strong or
persuasive evidence and there are insufficient inconsistencies to cast serious doubt on whether an
incident occurred.13
Appellant did submit medical evidence to the record from Dr. Vidlock which related a
diagnosis of right ankle sprain. As OWCP has not yet evaluated the medical evidence, the case
will be remanded to OWCP for evaluation of the medical evidence to determine whether she
sustained a medical condition and/or disability due to the December 19, 2015 work incident.
After such further development deemed necessary, OWCP shall issue a de novo decision.14
CONCLUSION
The Board finds that appellant has established that the alleged incident occurred at the
time, place, and in the manner alleged. The case is not in posture for decision as to whether
appellant sustained a right ankle sprain causally related to the accepted December 19, 2015
employment incident.

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Supra note 7.

11

Supra note 6.

12

Id.

13

R.W., Docket No. 14-1816 (issued February 9, 2015); D.B., Docket No. 14-924 (issued November 3, 2014).

14

C.V., Docket No. 15-0615 (issued September 13, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
of the medical evidence consistent with this opinion.
Issued: November 17, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
INSTALLATIONS COMMAND, San Diego, CA,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1384
Issued: October 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 14, 2020 appellant, through counsel, filed a timely appeal from February 14, 2020
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 14, 2020 decisions, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that OWCP
should expand acceptance of his claim to include consequential right shoulder conditions; and
(2) whether appellant has met his burden of proof to establish an employment-related disability for
the period October 1, 2017 through December 27, 2018.
FACTUAL HISTORY
On December 2, 2016 appellant, then a 56-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on July 27, 2015 he injured his right elbow when pulling a chain
link fence vehicle gate while in the performance of duty. OWCP accepted the claim for right
elbow lateral epicondylitis and lesion of radial nerve, upper limb.
In a March 23, 2016 report, Dr. David Chao, Board-certified in critical care medicine,
noted that on November 15, 2014 appellant was exercising at an employing establishment gym.
Appellant was performing hammer curls when he first experienced lateral right elbow pain.
Dr. Chao added that on July 29, 2015 appellant further injured his right elbow while closing a
vehicle gate at work and was given a cortisone injection and placed on light duty. He indicated
that on May 18, 2016 appellant underwent right elbow surgery, including right elbow lateral
epicondylectomy and extensor tendon debridement and repair. Dr. Chao diagnosed right elbow
lateral epicondylitis, right elbow pain, right elbow radial nerve compression, cervical
radiculopathy, and cervical degenerative disc disease. He opined that appellant was no longer able
to perform his duties as a police officer due to his right elbow and cervical conditions which,
despite ongoing care and treatment, had not and would not resolve and would continue to
deteriorate, with continuing symptoms of pain, weakness, and loss of range of motion
In a December 23, 2016 operative note, Dr. Chao noted that appellant had undergone a
right shoulder arthroscopy with loose body removal, chondroplasty, labral debridement,
subacromial decompression with coracoacromial ligament resection and bursectomy, and
arthroscopic distal clavicle excision.
On March 9, 2017 Dr. Chao noted that appellant related that on July 27, 2015 he was
closing an approximately 500-pound gate when he injured his right elbow and underwent
considerable conservative care that failed. He noted that appellant underwent surgery on May 18,
2016 with lateral epicondyle with extensor tendon repair. Dr. Chao also diagnosed osteoarthritis
of acromioclavicular joint on the right; impingement syndrome of shoulder region, right shoulder;
osteoarthritis of glenohumeral joint, right; and disorder of rotator cuff on the right. He further
opined that “per patient history” appellant “acknowledges preexisting right shoulder arthritis,
however, the [right] elbow work[-]related injury caused compensatory aggravation of [appellant’s]
[right] shoulder preexisting arthritis.”
In reports dated November 20, and December 15 and 26, 2017, Dr. Chao noted appellant’s
history of injury and treatment. He indicated that on October 19, 2016 appellant presented to the
clinic for a new injury to his right shoulder and explained that on October 5, 2016 after deer
hunting, appellant had to drag a deer and the next day he had right shoulder pain. Dr. Chao noted
that x-rays of the right shoulder showed significant degenerative joint disease (DJD) of the
glenohumeral joint which, following a referral for an MRI scan, revealed right shoulder DJD,
impingement and arthrosis. He further related that appellant underwent right shoulder surgery on
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December 23, 2016 and was told that appellant would need future shoulder replacement surgery.
Dr. Chao indicated that appellant acknowledged preexisting right shoulder arthritis; however, he
opined that the right elbow work injury caused a temporary aggravation of the right shoulder
preexisting arthritis and limited use of the right elbow caused aggravation of the right shoulder
arthritis. He opined that appellant’s “[r]ight shoulder arthritis was likely aggravated by the work
injury to the [r]ight elbow.” Dr. Chao further opined that appellant was no longer able to perform
his duties as a police officer or any similar job and the condition was permanent.
On March 18, 2019 OWCP received treatment notes from Dr. Chao dated from 2016 to
2019. In a November 29, 2017 report, Dr. Chao indicated that the right elbow condition was work
related and the preexisting arthritis of the right shoulder was aggravated by the elbow condition.
In a March 11, 2019 report, he opined that “the right shoulder injury is related to the right elbow
as the elbow limitations aggravated the right shoulder, extended right shoulder issues required
overuse of the right shoulder over a 1.5 year period of time.” Dr. Chao explained that appellant’s
previous degenerative osteoarthritis in the right shoulder was exacerbated by the work -related
injury to his right elbow due to overcompensation which led to a “frozen shoulder.” He opined,
“To a reasonable degree of medical certainty, the overuse of the right shoulder due to compensation
for the July 27, 2015 right elbow injury leading to further the DJD on [appellant’s] right shoulder
and neck.”
On March 19, 2019 appellant filed a claim for compensation (Form CA-7) for leave
without pay, night and Sunday differential pay from October 1, 2017 to November 30, 2018. The
employing establishment indicated that he requested time off for personal reasons, effective
October 1, 2017.
On March 19, 2019 appellant filed a Form CA-7 claiming disability for the period
November 30 to December 27, 2018. The employing establishment contended that he was
separated due to disability retirement as of August 17, 2018.
In a letter dated March 28, 2019, OWCP noted that it had received appellant’s March 19,
2019 Form CA-7 and explained that the evidence of record indicated that he had requested leave
without pay from September 30 to November 11, 2017 to take care of his father’s estate. It
requested additional evidence to establish disability from work during the period claimed and
afforded appellant 30 days to respond.
In an April 2, 2019 letter, OWCP requested that appellant submit additional evidence in
support of the expansion of the acceptance of his claim to include right shoulder conditions. It
advised that he should obtain a physician’s opinion supported by a medical explanation as to how
the claimed consequential injury was related to the accepted work-related conditions. OWCP
afforded appellant 30 days to respond.
In a report dated April 5, 2019, Dr. Chao noted that appellant was seen for follow-up of
impingement syndrome of the shoulder region, biceps tendinitis, and osteoarthritis of the
acromioclavicular joint. He indicated that appellant’s conditions included osteoarthritis of
acromioclavicular joint, right; osteoarthritis of glenohumeral joint, on the right; disorder of rotator
cuff on the right; and biceps tendinitis on the right. Dr. Chao noted that appellant also presented
for right elbow follow up and that appellant wanted to have the elbow added to his claim so he
could continue with therapy. He diagnosed impingement syndrome of the shoulder region on the
right and osteoarthritis of the glenohumeral joint, primary osteoarthritis of the right shoulder, and
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lateral epicondylitis of the right elbow. Dr. Chao explained that appellant had documented
previous degenerative osteoarthritis in his right shoulder which was exacerbated by the workrelated injury to the right elbow due to overcompensation use of the right shoulder caused by the
right elbow condition. He opined “to a reasonable degree of medical certainty, the overuse of the
right shoulder due to compensation for the [July 27, 2015] right elbow injury leading to further the
DJD on the right shoulder, prior to elbow injury, the shoulder symptoms were minor. In my
opinion, the deer incident played little or no role in the shoulder as examination and im aging post
incident was negative.” Dr. Chao explained that appellant was unable to work due to elbow,
shoulder, and cervical issues and the need for medication for pain and muscle relaxant.
By decision dated June 11, 2019, OWCP denied expansion of the acceptance of the claim
for a consequential injury, finding that the evidence of record did not demonstrate weakness or
impairment caused by the accepted work-related injury or an aggravation of the original injury.
On June 17, 2019 counsel for appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. In a letter dated October 8, 2019, counsel requested a review of
the written record in lieu of an oral hearing.
By decision dated November 26, 2019 OWCP’s hearing representative vacated the
June 11, 2019 decision, finding that the medical evidence of record required further development.
The hearing representative explained that, while the opinion of the treating physician, Dr. Chao,
was insufficiently rationalized to establish that appellant sustained an employment-related
aggravation of his preexisting right shoulder cervical conditions, the treating physician provided
an uncontroverted opinion that required further development and referral for a second opinion
examination.
On December 23, 2019 OWCP referred appellant for a second opinion examination with
Dr. William P. Curran, a Board-certified orthopedic surgeon, for an assessment of the work-related
conditions, whether expansion to include additional conditions was warranted, the extent of
disability, and appropriate treatment.
In a January 27, 2020 report, Dr. Curran noted appellant’s history of injury and medical
treatment. He noted the accepted conditions of right elbow lateral epicondylitis and lesion of radial
nerve, upper limb, and a May 18, 2016 right lateral epicondylectomy, extensor tendon release, and
debridement. Dr. Curran noted that on October 19, 2016 Dr. Chao indicated that appellant was
dragging a deer and experienced right shoulder pain the following day. He related that on
October 9, 2016 Dr. Chao evaluated the right shoulder, obtained radiographs, and found significant
acromioclavicular joint disease and type III acromioclavicular spur. Dr. Curran also noted that
Dr. Chao indicated that appellant had right shoulder surgery on December 23, 2016 with an
arthroscopic-assisted removal of loose body, chondroplasty, labral debridement, subacromial
decompression with coracoacromial ligament resection, bursectomy, and distal clavicectomy. He
also noted that Dr. Chao continued to follow appellant for right shoulder complaints through
April 22, 2019. Dr. Curran indicated that appellant was no longer employed as a police officer.
He examined appellant and diagnosed right lateral epicondylitis, impingement syndrome of right
shoulder, osteoarthritis of the right shoulder joint, and disorder of the right rotator cuff. Dr. Curran
opined that the shoulder diagnoses were not causally related to the July 27, 2015 work injury. He
explained that there was no evidence that appellant sought or received medical care to his right
shoulder from July 27, 2015 through October 19, 2016, and advised that, based upon his 40 plus
years as a treating orthopedic surgeon, his education, and training, in the event that appellant “had
injured his right shoulder on July 27, 2015, as he did his right elbow, I would have expected right
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shoulder complaints to be recorded, diagnosed, and treated within 48 to 72 hours from the date of
the incident. Therefore, any treatment given to [appellant]’s right shoulder would not be causally
related to a July 27, 2015, incident.” Dr. Curran further opined that appellant was temporarily
totally disabled from employment due to his right elbow condition from May 18 through
December 15, 2016, and that appellant was currently partially disabled due to the right elbow. He
completed a work capacity evaluation (Form OWCP-5c) noting that appellant had partial disability
due to weakness of grip strength testing and limitation of right elbow flexion and extension.
Dr. Curran opined that appellant was not a candidate for a functional capacity evaluation and listed
the restrictions on the Form OWCP-5c as sedentary and permanent with limitations of no more
than 6 hours of twisting for the right elbow, no more than 6 hours of repetitive movements of the
right wrist and elbow, no more than 6 hours of pushing, pulling, and lifting on the right, and no
more than 30 pounds, with 10-minute breaks every hour. He also noted that right elbow support
was needed.
By decision dated February 14, 2020, OWCP denied expansion of the acceptance of the
claim to include a consequential injury, as the evidence did not demonstrate that the weakness or
impairment was caused by the accepted work-related injury or illness, an aggravation of the
original injury, or a new work injury.
By separate decision also dated February 14, 2020, OWCP denied appellant’s claim for
disability for the period October 1, 2017 through December 27, 2018. It found that the evidence
supported that he was not working for personal reasons and/or medical reasons not related to his
accepted conditions.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.5 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medica l rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.6
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct. 7 Thus, a subsequent

4

See R.R., Docket No. 19-0086 (issued February 10, 2021); K.T., Docket No. 19-1718 (issued April 7, 2020);
Jaja K. Asaramo, 55 ECAB 200 (2004).
5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

Id.

7

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004).

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injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Dr. Chao, opined in several reports that he believed that appellant’s right shoulder
conditions were aggravated by overcompensation to protect his right elbow from further injury.
He indicated, in a November 29. 2017 report, that appellant’s work-related injury to his right elbow
caused overcompensation of appellant’s right shoulder which led to a “frozen shoulder.” Dr. Chao
elaborated in March 11 and April 5, 2019 reports, that appellant’s right shoulder condition was
related to the right elbow as the elbow limitations required overuse of the right shoulder over a 1.5
year period of time.
Based upon Dr. Chao’s opinion that appellant’s right shoulder conditions were a
consequence of his right elbow injury and appellant’s request for expansion of his claim, OWCP
referred appellant to Dr. Curran for a second opinion evaluation. However, OWCP did not
specifically request that Dr. Curran address whether appellant’s right shoulder conditions were
consequential to the right elbow injury. Dr. Curran did not address this aspect of the claim, but
rather limited his opinion to a finding that the employment injury of July 27, 2015 did not cause
appellant’s right shoulder conditions as appellant did not seek medical treatment for his right
shoulder condition until October 19, 2016. He further opined that if appellant had injured his right
shoulder on July 27, 2015 he would have expected treatment within 48 to 72 hours of injury.
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. 9 It has an obligation to see that justice is done. 10
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 11 In this case,
Dr. Curran was not asked to address whether appellant’s right shoulder condition could have been
a consequence of his right elbow condition. Due to the deficiencies in Dr. Curran’s report, OWCP
should have sought clarification or referred appellant for another second opinion evaluation. 12
The case shall therefore be remanded for further development. On remand, OWCP shall
refer appellant, together with an updated statement of accepted facts (SOAF) and a list of specific
questions, to Dr. Curran for a supplemental opinion as to whether appellant developed a
consequential right shoulder condition causally related to his accepted right elbow condition. If
8

A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).
9

See, e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

10

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
11

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

12

D.G., Docket No. 20-1183 (issued May 26, 2021); M.S., Docket No. 19-0282 (issued August 2, 2019); V.H.,
Docket No. 14-0433 (issued July 3, 2014).

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Dr. Curran is unavailable or unwilling to render a supplemental opinion, then OWCP shall refer
appellant, together with a SOAF and the medical records, to another second o pinion physician in
the appropriate field of medicine for a rationalized opinion on the issue to be resolved. 13 Following
this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2020 decisions are set aside and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: October 6, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

13

R.M., Docket No. 20-0486 (issued June 9, 2021); M.T., Docket No. 20-0321 (issued April 26, 2021).

14

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cranbury, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2074
Issued: June 25, 2012

Case Submitted on the Record

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

JURISDICTION
On September 28, 2011 appellant, through her attorney, filed a timely appeal from an
August 2, 2011 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established that she sustained greater than a 12 percent
impairment of the right upper extremity and 18 percent impairment of the left upper extremity,
for which she received a schedule award.
1
2

5 U.S.C. § 8101 et seq.

In a March 17, 2011 letter imaged into the case record on March 21, 2011, counsel requested reconsideration of
OWCP’s March 19, 2010 decision under File No. xxxxxx313. File No. xxxxxx313 is not before the Board on the
present appeal. Counsel appealed the March 19, 2010 decision under File No. xxxxxx313 to the Board, docketed
under No. 11-2125. On May 16, 2012 the Board issued an Order Dismissing Appeal under Docket No. 11-2125 on
the grounds that the appeal was not timely filed.

On appeal, counsel contends that OWCP erred by denying a claimed recurrence of
disability and a subsequent request for reconsideration after it accepted right shoulder tendinitis.
FACTUAL HISTORY
OWCP accepted that on October 7, 2004 appellant, then a 40-year-old distribution clerk,
sustained left rotator cuff tendinitis when she lifted a tub of mail.
Dr. Mohnish Ramani, an attending Board-certified orthopedic surgeon submitted reports
from January 11, 2005 through September 25, 2006 diagnosing occupationally-related left
rotator cuff tendinitis with a partial thickness rotator cuff tear. In reports from April 30, 2007
through February 22, 2009, Dr. Ramani diagnosed bilateral rotator cuff tendinitis.3 He limited
lifting to five pounds.
On September 16, 2008 appellant accepted a light-duty position with lifting limited to
five pounds.
On December 30, 2008 appellant filed a Form CA-2a claiming that she sustained a
recurrence of total disability commencing November 13, 2008 as she was forced to perform
work exceeding her medical restrictions.4 She remained off work. By decision dated April 10,
2009, OWCP denied the recurrence claim on the grounds that appellant failed to establish a
change in her accepted condition or in her light-duty job assignment. Following an August 12,
2009 telephonic hearing, it issued a November 16, 2009 decision affirming its April 10, 2009
decision.
On August 17, 2010 appellant claimed a schedule award. She submitted an impairment
rating from Dr. Arthur Becan, an attending orthopedic surgeon.5 In an April 5, 2010 report
revised on February 28, 2011,6 Dr. Becan opined that appellant had reached maximum medical
improvement. He diagnosed bilateral rotator cuff tears and subacromial impingement.
Regarding the right shoulder, Dr. Becan measured forward elevation at 150/180 degrees,
abduction at 110/180 degrees, cross-over adduction at 60/75 degrees, external rotation at 70/90
degrees and internal rotation at 50/90 degrees. Regarding the left shoulder, he found forward
elevation of 90/180 degrees, abduction of 80/180 degrees, cross-over adduction of 40/75 degrees,
external rotation of 40/90 degrees and internal rotation of 20/90 degrees. Dr. Becan noted
muscle weakness in both arms, with the supraspinatus graded at 2/5 on the left and 3/5 on the
3

Dr. Ramani submitted periodic reports from July 10, 2009 to July 25, 2011 newly diagnosing bilateral
acromioclavicular joint synovitis. Appellant also submitted records regarding a herniated cervical disc. There is no
claim of record for a herniated cervical disc.
4

A January 20, 2009 functional capacity evaluation demonstrated that appellant could perform full-time work at
the light physical demand level, with upper extremity restrictions.
5

An October 18, 2010 MRI scan of left shoulder showed acromioclavicular degeneration with impingement, a
small full thickness tear of the supraspinatus tendon and a small tear of the posterior-inferior labrum.
6

In a September 12, 2010 report, an OWCP medical adviser noted a mathematical error in Dr. Becan’s original
April 5, 2010 report. In response to OWCP’s October 20, 2010 and February 3, 2011 requests, Dr. Becan submitted
revised calculations, culminating in the April 5, 2010 report.

2

right, and the deltoids, triceps and biceps at 3/5 on the left and 4/5 on the right. Referring to
Table 15-34, page 4757 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, the A.M.A., Guides) to assess the right arm,
he found three percent impairment for flexion limited to 150 degrees, three percent impairment
for abduction limited to 110 degrees and two percent impairment for internal rotation limited to
50 degrees. Dr. Becan found a grade modifier of 1 according to Table 15-35, page 477,8
equaling 11 percent impairment. He found that the QuickDASH score of 45 percent warranted a
grade modifier of 2 according to Table 15-7, page 406,9 increasing the right upper extremity
impairment by five percent under Table 15-36, page 477.10 Dr. Becan combined these
impairments to equal 12 percent impairment of the right arm. Regarding the left arm, he found
that, according to Table 15-34, appellant had three percent impairment for flexion limited to 90
degrees, six percent impairment for abduction limited to 80 degrees, two percent impairment for
external rotation limited to 40 degrees, and six percent impairment for internal rotation limited to
20 degrees, totaling 17 percent. Dr. Becan noted that the QuickDASH score of 75 percent
equaled a grade modifier of 3, increasing the left upper extremity impairment by 5 percent,
resulting in a combined 18 percent impairment to the left arm.
In a March 21, 2011 report, an OWCP medical adviser concurred with Dr. Becan’s
application of the A.M.A., Guides and impairment calculations.
By decision dated August 2, 2011, OWCP granted appellant a schedule award for an 18
percent impairment of the left upper extremity and a 12 percent impairment of the right upper
extremity. It noted that it had expanded the claim to include a right shoulder condition. The
period of the award ran from April 5, 2010 to July 2, 2011.
LEGAL PRECEDENT
The schedule award provisions of FECA11 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, 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 matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, OWCP 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 OWCP as a standard for evaluation of schedule losses and the Board

7

Table 15-34, page 475 of the A.M.A., Guides is entitled “Shoulder Range of Motion.”

8

Table 15-35, page 477 of the A.M.A., Guides is entitled “Range of Motion Grade Modifiers.”

9

Table 15-7 page 406 of the A.M.A., Guides is entitled “Adjustment Grid Summary.”

10

Table 15-36, page 477 of the A.M.A., Guides is entitled “Functional History Grade Adjustment: Range of
Motion.”
11

5 U.S.C. § 8107.

3

has concurred in such adoption.12 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 In determining impairment for the upper extremities under the sixth edition
of the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
upper extremity to be rated. With respect to the shoulder, reference is made to Table 15-5
(Shoulder Regional Grid) beginning on page 401. After the class of diagnosis (CDX) is
determined from the Shoulder Regional Grid (including identification of a default grade value),
the impairment class is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).15 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
OWCP accepted left rotator cuff tendinitis due to an October 7, 2004 lifting incident. On
April 17, 2010 appellant claimed a schedule award for permanent impairment of both arms. In
support of her claim, she submitted a February 28, 2011 report from Dr. Becan, an attending
orthopedic surgeon, who diagnosed impingement syndrome and tendinitis of both shoulders,
indicating a default class 1 diagnosis-based impairment (CDX) according to Table 15-5.
Regarding the right arm, he used Table 15-34 to find three percent impairment for limited
flexion, three percent impairment for limited abduction and two percent impairment for limited
internal rotation, totaling eight percent. Dr. Becan applied a grade modifier of 1 for limited
motion GMPE according to Table 15-35, equaling 11 percent impairment. Coupled with a
GMFH of 2 for the QuickDASH score of 45 percent according to Table 15-7, this increased the
right upper extremity impairment by 5 percent according to Table 15-36. Dr. Becan did not find
a GMCS. Applying the net adjustment formula of (GMFH - CDX) + (GMPE - CDX), or (2-1) +
(2-1), he calculated a 12 percent impairment of the right arm. Dr. Becan applied the same tables
and grading schemes in evaluating the left arm. He found three percent impairment for flexion
limited to 90 degrees, six percent impairment for abduction limited to 80 degrees, two percent
impairment for external rotation limited to 40 degrees, and six percent impairment for internal
rotation limited to 20 degrees, totaling 17 percent. Dr. Becan noted that the QuickDASH score
of 75 percent equaled a grade modifier of 3, increasing the left upper extremity impairment by 5
percent, resulting in 18 percent impairment to the left arm. An OWCP medical adviser
concurred with Dr. Becan’s rating methodology and calculations.

12

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

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
14

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.”
15

A.M.A., Guides 494-531 (6th ed., 2008).

4

The Board finds that Dr. Becan’s impairment rating, as reviewed by OWCP’s medical
adviser, was thorough, detailed and properly applied the appropriate portions of the A.M.A.,
Guides. Therefore, OWCP’s August 2, 2011 schedule award determination was proper under the
law and facts of this case.
On appeal, counsel contends that OWCP erred by denying a claimed recurrence of
disability, a subsequent request for reconsideration and periods of wage loss after it accepted her
right shoulder condition. The recurrence and reconsideration issues are not before the Board on
the present appeal. OWCP’s April 10, 2009 and November 16, 2009 decisions denying a
recurrence of disability were both issued more than 180 days before September 26, 2011, the
date counsel filed his appeal with the Board. Therefore, the Board does not have jurisdiction
over the recurrence of disability and wage-loss compensation issues. Insofar as counsel refers to
a March 19, 2010 decision under File No. xxxxxx313 denying periods of wage-loss
compensation, this decision is not before the Board on the present appeal.16
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained greater than a 12
percent impairment of the right upper extremity and a 18 percent impairment of the left upper
extremity, for which she received a schedule award.

16

See supra note 2.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2011 is affirmed.
Issued: June 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-1506
Issued: March 11, 2011

Case Submitted on the Record

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

JURISDICTION
On May 12, 2010 appellant, through her attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ March 26, 2010 merit decision denying her occupational
disease claim. Pursuant to 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 that she sustained an
injury to her neck and arm in the performance of duty.
FACTUAL HISTORY
On May 9, 2003 appellant, a 38-year-old transportation security screener, filed a
traumatic injury claim under File No. xxxxxx486, alleging that she sustained injuries to her right
shoulder while lifting a bag. The claim was accepted for right shoulder impingement, right

rotator cuff tear, right shoulder bursitis, cervical strain and right elbow epicondylitis.1 Appellant
returned to limited duty on October 11, 2008.
On June 30, 2009 appellant filed a recurrence, alleging that she experienced an increase
in arm and neck pain as a result of her ongoing limited-duty activities. Her arms had to hang at
her sides all day because her work chair provided insufficient support for them. Appellant had to
turn her head constantly while sitting in one position for hours at a time and assisting travelers.
Appellant submitted a May 26, 2009 report from Dr. Robert Marc Fumich, a Boardcertified orthopedic surgeon, who treated her following right rotator cuff repair under a prior
claim. On examination, Dr. Fumich found full active and passive range of motion (ROM) in the
right shoulder. In a June 23, 2009 report, he stated that appellant appeared wearing a neck collar.
Appellant described two weeks of recurrent severe neck symptoms, with numbness in the right
arm. Examination revealed spasm with decreased motion and triceps were decreased. On
June 24, 2009 Dr. Fumich recommended that appellant stop working as of June 25, 2009 until
approximately August 1, 2009 due to severe neck and shoulder pain.
Appellant filed claims for compensation for total disability for the period beginning
June 25, 2009. The record also contains a July 15, 2009 functional capacity evaluation.
In a July 23, 2009 statement, appellant noted that she missed work due to pain and
numbness in her right arm and her inability to turn her head because of stiffness and pain in her
neck. She described her daily work activities in her limited-duty job, which she alleged
contributed to increased pain. Appellant was required to sit on a stool for hours at a time. Her
arms hung down because the stool provided no support for them. Appellant also had to lean
forward to rest her arms on a wooden podium, resulting in numbness in her arms and a stiff neck.
She was required to use her arms and turn her head constantly to point or communicate with
people of other languages and to direct travelers toward their luggage. In June, the pain
allegedly became so severe that appellant was in tears most of the time.
On August 7, 2009 the Office determined that appellant’s claim constituted an
occupational disease claim, rather than a claim for a recurrence of disability, as she cited new
work activities as the cause of her claimed arm and neck conditions. It opened a new file under
the instant File No. xxxxxx920.
In an August 13, 2009 report, Dr. Fumich described the results of a cervical magnetic
resonance imaging (MRI) scan, which demonstrated a bulging disc at C5-6. Appellant submitted
a September 2, 2009 report from Dr. Jerome B. Yokiel, a Board-certified anesthesiologist. On
examination, Dr. Yokiel found tenderness to palpation in the midline cervical region and pain
with ROM of the cervical spine and right shoulder. He diagnosed shoulder sprain and
dysfunction and cervical radiculopathy.

1

The Office accepted appellant’s January 19, 2003 claim for left lateral epicondylitis under File No. xxxxxx433.
Appellant’s April 29, 2003 traumatic injury claim was accepted for right shoulder strain under File No. xxxxxx524.
On February 22, 2010 the Office consolidated case File Nos. xxxxxx524, xxxxxx468, xxxxxx433 and xxxxxx920
under master File No. xxxxxx433.

2

By letter dated August 19, 2009, the Office informed appellant that the information
submitted was insufficient to establish her claim, noting that there was no medical evidence
based upon a complete and accurate factual history that established a disabling condition
resulting from factors of her federal employment. It informed her that she had 30 days to submit
additional evidence to support her claim.
By decision dated September 22, 2009, the Office denied appellant’s claim, finding that
the medical evidence failed to demonstrate that the claimed arm and neck conditions were caused
by the accepted work-related activities.
On September 24, 2009 appellant, through her representative, requested an oral hearing.
Appellant submitted a September 24, 2009 report from Dr. Fumich, who noted her
continued right shoulder and cervical pain. Dr. Fumich advised that she had increased symptoms
after returning to a new limited-duty job, which required repetitive ROM of the head, neck and
shoulder. He stated that appellant’s chair had no arms, placing her shoulder in a continual
gravity traction position all day and she had to turn her head repeatedly.
On September 29, 2009 Dr. Fumich provided work restrictions, which included limited
head turning and wearing a cervical collar. He recommended that appellant be restricted from
repetitive movement of the wrist and elbow, pulling or lifting more than 10 pounds and pushing
more than 20 pounds two to four hours a day.
On October 15, 2009 Dr. Fumich informed the Office that his recommended restrictions
were in place because of appellant’s multiple recognized orthopedic problems due to
work-related injures including the shoulder, neck and elbows, coupled with the C5-6 disc bulge.
He stated that the restrictions were for prevention of future injuries and to decrease
symptomatology to the involved areas so that she could remain functional with activities of daily
living. In a November 18, 2009 work capacity evaluation, Dr. Fumich stated that his restrictions
were permanent.
On December 7, 2009 the Office informed the employing establishment that it intended
to obtain a second opinion evaluation in order to evaluate whether appellant’s work restrictions
were adequate and to establish the current status of her accepted conditions.
During a January 7, 2009 telephonic hearing, appellant repeated her description of her
limited-duty activities, which included constant turning and moving of her head, neck, shoulders
and arms. Due to the repetitive movement required by her employment, the pain increased to a
point such that she was unable to turn her head or move her arm.
By decision dated March 26, 2010, an Office hearing representative affirmed the
September 22, 2009 decision, finding that the evidence of record was insufficient to establish
that appellant sustained a new injury related to her employment duties leading to a need for
disability from work. He stated that Dr. Fumich’s act of releasing appellant to restricted duty
“would belie the notion that [she] was actually disabled from the work in question or that any
new medical condition occurred.” Noting that the underlying cervical condition was not an
accepted condition in appellant’s prior claims, the hearing representative and Dr. Fumich did not

3

provide evidence as to whether and how appellant’s underlying condition was actually changed
by her work activity.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, 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.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion 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.5
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
Dr. Fumich’s reports generally support appellant’s claim for a new injury. On June 23,
2009 he noted that she had experienced two weeks of recurrent severe neck symptoms, with
numbness in the right arm. Examination revealed spasm with decreased motion and triceps were
decreased. On August 13, 2009 Dr. Fumich reviewed an MRI scan which showed evidence of a
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

Id.

4

bulging disc at C5-6, representing a worsening in appellant’s condition due to her repetitive job
activities. On September 24, 2009 he provided an accurate history of appellant’s condition and
injury consistent with that reported by her and noted that she had increased symptoms after
returning to a new limited-duty job, which required repetitive motion of the head, neck and
shoulder. Dr. Fumich stated that appellant’s chair had no arms, placing her shoulder in a
continual gravity traction position all day and she had to turn her head repeatedly. His reports
reflect an understanding of appellant’s light-duty job requirements and the nature of her job
duties. While Dr. Fumich’s reports do not contain a detailed explanation as to how appellant’s
employment activities in her light-duty job were causally related to her claimed conditions; they
suggest, however, that her cervical and right shoulder conditions were at least aggravated by the
required repetitive duties.
On September 2, 2009 Dr. Yokiel provided examination findings and diagnosed shoulder
sprain and dysfunction and cervical radiculopathy. While his report does not contain an opinion
as to the cause of appellant’s diagnosed conditions, it is consistent with appellant’s claim and
Dr. Fumich’s reports.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.6 However, it is well established that proceedings under the Act are not
adversarial in nature and while the claimant has the burden of establishing entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.7
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in describing that she sustained an exacerbation of an
employment-related cervical and right shoulder condition and are not contradicted by any
substantial medical or factual evidence of record. The Office found that her physicians did not
seem to have a clear understanding of her work duties or her physical restrictions; but the Office
did not provide her physicians with a statement of accepted facts which delineated her job
functions and restrictions over the course of her employment. While the reports are not

6

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 6; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

sufficient to meet appellant’s burden of proof to establish her claim, they raise an uncontroverted
inference between her claimed conditions and the identified employment factors and are
sufficient to require the Office to further develop the medical evidence and the case record.8
The hearing representative noted that appellant’s underlying cervical condition was not
an accepted condition in her prior claims, as represented by Dr. Fumich. As noted, however, the
Office accepted her claim under File No. xxxxxx486 for cervical strain, among other conditions.
Dr. Fumich’s reports were based upon a proper factual background.
On remand, the Office should prepare a statement of accepted facts which includes a
description of appellant’s employment history, positions held and functions performed by her in
each position. It should submit the statement of accepted facts to her treating physician, or to a
second opinion examiner, in order to obtain a rationalized opinion as to whether her current
condition is causally related to factors of her employment.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.

8

See Virginia Richard, supra note 6; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989). The Board notes that in File No. xxxxxx468, the Office informed the employing establishment
that it intended to obtain a second opinion evaluation in order to evaluate whether appellant’s work restrictions were
adequate and to establish the current status of her accepted conditions. The record does not reflect that the second
opinion evaluation was ever performed.

6

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further development
consistent with this decision.
Issued: March 11, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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

Docket No. 19-0478
Issued: August 9, 2019

Case Submitted on the Record

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

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from October 23, 2018 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability for the period July 7, 2018 and continuing causally related to her accepted May 1, 2018
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 23, 2018 decisions, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

employment injury; and (2) whether appellant has met her burden of proof to expand the
acceptance of her claim to include the conditions of spinal stenosis, spondylolisthesis, and
sacroiliac joint osteoarthritis, as causally related to the accepted May 1, 2018 employment injury.
FACTUAL HISTORY
On May 22, 2018 appellant, then a 57-year-old food service worker, filed a traumatic injury
claim (Form CA-1) alleging that on May 1, 2018, she tripped over a rug and sustained knee and
elbow injuries while in the performance of duty. She stopped work that day. On June 6, 2018
OWCP accepted appellant’s claim for bilateral knee contusions.
On September 1, 2018 appellant submitted a claim for compensation (Form CA-7) for
leave without pay (LWOP) due to total disability during the period July 7 to August 18, 2018. On
September 10, 2018 she submitted a Form CA-7 for LWOP for intermittent disability during the
period August 19 through September 1, 2018.
In a letter dated September 14, 2018, OWCP requested that appellant’s treating physician,
Dr. Marc E. Rankin, a Board-certified orthopedic surgeon, provide an updated narrative medical
report detailing appellant’s condition.
In a report dated September 10, 2018, Dr. Rankin diagnosed spinal stenosis of lumbar
region with neurogenic claudication, presence of left artificial knee joint, spondylolisthesis, and
osteoarthritis of sacroiliac joint, based on a bone scan of appellant’s left knee and a magnetic
resonance imaging (MRI) scan of appellant’s back. He indicated that she complained of severe
pain in her left knee, which she related began after a fall at work. Dr. Rankin opined that appellant
was to remain off of work.
In a development letter dated September 20, 2018, OWCP informed appellant that
additional medical evidence was necessary to establish her claim for compensation, and requested
that she submit medical evidence establishing total disability due to the accepted conditions for
the periods of wage loss claimed. It afforded her 30 days to respond.
In a separate letter of even date, OWCP advised appellant that it had received her
physician’s notification of newly diagnosed conditions of spinal stenosis, spondylolisthesis, and
sacroiliac joint osteoarthritis, allegedly causally related to her accepted May 1, 2018 employment
injury. Appellant was advised that additional medical evidence was necessary to expand
acceptance of her claim. OWCP afforded her 30 days to submit the necessary evidence.
On September 20, 2018 appellant submitted a Form CA-7 for LWOP for intermittent
disability for the period September 2 through 15, 2018.
In a work capacity evaluation form (Form OWCP-5c) dated September 25, 2018, Cheree
Jamison, a physician assistant, indicated that appellant was still experiencing bilateral knee and
leg pain. She noted that appellant was totally disabled from work, and that she had yet to reach
maximum medical improvement.
On October 15, 2018 appellant submitted a Form CA-7 for LWOP for total disability for
the period September 17 to October 7, 2018.
2

By decision dated October 23, 2018, OWCP denied appellant’s claim for compensation for
disability for the period beginning July 7, 2018 and continuing.
By separate decision of even date, OWCP denied the expansion of the acceptance of
appellant’s claim to include the additional conditions of spinal stenosis, spondylolisthesis, and
sacroiliac joint osteoarthritis.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.4
Under FECA the term “disability” is defined as the incapacity because of an employment
injury to earn the wages the employee was receiving at the time of the injury.5
Whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.6 Whether a particular injury causes
an employee to be disabled from work and the duration of that disability, are medical issues that
must be proven by a preponderance of the reliable, probative, and substantial medical evidence.7
For each period of disability claimed, the employee has the burden of proof to establish
that she was disabled for work as a result of the accepted employment injury.8 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify their disability and entitlement to compensation.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 Causal relationship is a medical issue and the

3

Supra note 1.

4
S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
6

T.G., Docket No. 18-1064 (issued April 26, 2019).

7

Id.

8

B.F., Docket No. 19-0123 (issued May 13, 2019); M.D., Docket No. 18-0474 (issued October 3, 2018); see
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).
9

Id.

10

See S.J., supra note 4; Kathryn E. DeMarsh, 56 ECAB 677 (2005).

3

medical evidence required to establish causal relationship is rationalized medical evidence.11 The
opinion of the physician must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
for the period July 7, 2018 and continuing causally related to her accepted May 1, 2018
employment injury.
In support of her claim, appellant submitted a medical report from Dr. Rankin. In his
September 10, 2018 report, Dr. Rankin diagnosed several lumbar conditions and noted the
presence of a left artificial knee joint. He indicated that appellant complained of severe pain in
her left knee, which she related began after a fall at work, and also opined that appellant was to
remain off of work. However, Dr. Rankin did not provide medical rationale which explained why
objective findings of appellant’s accepted knee conditions caused her disability.14 Subjective
complaints of pain are insufficient, in and of themselves, to support payment of compensation.15
When physician’s statements regarding an employee’s ability to work consist only of recitation of
the employee’s complaints that he or she was in too much pain to work, without objective findings
of disability being shown, the physician has not presented a rationalized opinion on the issue of
disability.16 The Board finds that, without medical rationale supporting disability, Dr. Rankin’s
reports are insufficient to meet appellant’s burden of proof.17 His reports, therefore, do not
establish that appellant was disabled from work during the claimed period due to her accepted knee
conditions.

11

Id.

12

See supra note 10.

13

V.B., Docket No. 18-1273 (issued March 4, 2019); see William A. Archer, 55 ECAB 674 (2004); see also
Fereidoon Kharabi, 52 ECAB 291 (2001).
14

See D.V., Docket No. 17-1344 (issued March 19, 2018).

15

B.F., supra note 8.

16

B.F., supra note 8; P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

17

S.H., Docket No. 18-1398 (issued March 12, 2019).

4

Appellant also submitted a Form OWCP-5c from Ms. Jamison, a physician assistant.
However, physician assistants are not considered physicians under FECA and their opinions
regarding disability therefore do not constitute probative medical evidence.18
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period July 7, 2018 and continuing due to her accepted knee conditions, the
Board finds that appellant has not met her burden of proof.
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
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.19
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.20 To establish causal
relationship between the condition as well as any attendant disability claimed and the employment
injury, an employee must submit rationalized medical evidence supporting causal relationship.21
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.22
Neither the mere fact that a disease or condition manifests itself during a period of
employment, nor the claimant’s own belief that the disease or condition was caused or aggravated
by employment factors or incidents is sufficient to establish causal relationship.23

18
5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; R.V., Docket No. 18-1037 (issued March 26, 2019); E.T.,
Docket No. 17-0265 (issued May 25, 2018) (physician assistants are not considered physicians under FECA); C.P.,
Docket No. 17-0042 (issued December 27, 2016); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); Roy L.
Humphrey, 57 ECAB 238 (2005).
19

R.K., Docket No. 18-1409 (issued April 15, 2019); see T.F., Docket No. 17-0645 (issued August 15,
2018); Jana K. Asaramo, 55 ECAB 200 (2004).
20

See D.V., supra note 14.

21

R.K., supra note 19; see S.A., Docket No. 18-0399 (issued October 16, 2018); Leslie C. Moore, 52 ECAB
132 (2000).
22

Id.

23

C.P., Docket No. 18-1645 (issued March 8, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include spinal stenosis, spondylolisthesis, and sacroiliac joint osteoarthritis as
causally related to the accepted May 1, 2018 employment injury.
In his September 10, 2018 report, Dr. Rankin noted a history of appellant’s accepted injury
and provided examination findings based on diagnostic testing. He diagnosed spinal stenosis of
lumbar region with neurogenic claudication, spondylolisthesis, and osteoarthritis of sacroiliac
joint. However, Dr. Rankin did not address the causal nature of these additional diagnoses. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.24 Thus, this
evidence is insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period July 7, 2018 and continuing causally related to her accepted May 1, 2018
employment injury. The Board also finds that she has not met her burden of proof to expand the
acceptance of her claim to include additional conditions of spinal stenosis, spondylolisthesis, and
sacroiliac joint osteoarthritis as causally related to the accepted May 1, 2018 employment injury.

24

T.K., Docket No. 18-1239 (issued May 29, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the October 23, 2018 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: August 9, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, OLIVETTE BRANCH
POST OFFICE, St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1819
Issued: July 2, 2020

Case Submitted on the Record

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

JURISDICTION
On August 17, 2019 appellant filed a timely appeal from a February 22, 2019 merit
decision and a July 19, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 22, 2019, the date of OWCP’s decision regarding
eligibility for continuation of pay, was August 21, 2019. Because using August 22, 2019, the date the appeal was
received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is August 17, 2019, rendering the appeal
from the decision of February 22, 2019 timely filed. See 20 C.F.R. § 501.3(f)(1); X.Y., Docket No. 19-1290 (issued
January 24, 2020).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has established entitlement to continuation of pay for
the period December 21, 2018 through February 3, 2019; and (2) whether OWCP properly
determined that appellant abandoned her request for an oral hearing before an OWCP hearing
representative.
FACTUAL HISTORY
On December 27, 2018 appellant, then a 46-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she sustained neck strain on December 20, 2018 when her
vehicle was side-swiped while in the performance of duty. She stopped work on January 2, 2019.
OWCP accepted appellant’s claim for sprain of ligaments of the thoracic spine and strain of the
muscle, fascia, and tendon at the neck level.
In the attending physician’s report portion of an Authorization for Examination And/Or
Treatment (Form CA-16) dated December 20, 2018, Dr. Scott Jones, Board-certified in
preventative medicine, diagnosed cervical and thoracic strain. He noted that appellant had no
period of disability and was able to resume light work on that date, with restrictions of no lifting,
pushing/pulling greater than 10 pounds, no reaching overhead, and no delivery with employing
establishment vehicles.
In a work status report dated December 27, 2018, Dr. Jones diagnosed cervicalgia, thoracic
spine pain, strain of muscle and tendon of unspecified wall of thorax and cervical disc disorder
with radiculopathy. He found that appellant could: work with restrictions of lifting, pushing, and
pulling up to 10 pounds; no over-the-shoulder activity; and avoiding repetitive head and neck
turning. In an accompanying duty status report (Form CA-17) of the same date, Dr. Jones advised
her to resume work on that date and recommended work restrictions of lifting/carrying no more
than 10 pounds and no more than six hours of driving per day. On the supervisor’s side of the duty
status report, a supervisor noted that limited duty would be provided excluding bedrest.
On January 9, 2019 the employing establishment challenged appellant’s claim and
controverted entitlement of continuation of pay. It noted that she worked continuously after the
injury occurred, visiting a physician seven days after the date of the claimed incident. The
employing establishment noted that appellant subsequently claimed temporary total disability.
In a development letter dated January 14, 2019, OWCP informed appellant of the
deficiencies of her claim and requested additional medical evidence. It explained that she had not
submitted a physician’s opinion as to how her injury resulted in her diagnosed conditions. OWCP
afforded appellant 30 days to respond.
OWCP thereafter received a report dated December 21, 2018 wherein Dr. Jones diagnosed
cervicalgia, thoracic spine pain, strain of the muscle and tendon of an unspecified wall of the thorax
(initial encounter), and strain of the muscle, fascia, and tendon at neck level. Dr. Jones noted that
appellant’s diagnoses were related to a traffic accident at work and recommended work restrictions
of lifting, pushing, or pulling up to 10 pounds, no over-the-shoulder activity, and avoiding
repetitive head and neck turning. In a Form CA-17 dated December 21, 2018, he related that

2

appellant would work full time with lifting and carrying limited to 10 pounds, no over-the-shoulder
activity, and no repetitive head/neck turning.
In a Form CA-17 report dated January 4, 2019, Dr. Jones recommended work restrictions
including no lifting/carrying over 10 pounds and no over-the-shoulder activity. In a work status
report of the same date, he diagnosed cervicalgia, thoracic spine pain, strain of the muscle and
tendon of an unspecified wall of the thorax, and cervical disc disorder with radiculopathy.
Dr. Jones recommended work restrictions including lifting/pulling/pushing up to 10 pounds,
avoiding over-the-shoulder activity, and ability to change positions from sitting to standing
periodically.
In a work activity status report dated January 14, 2019, Dr. Gustavo M. Galeano, a family
medicine specialist, diagnosed strain of the muscle and tendon of an unspecified wall of the thorax.
He recommended that appellant return to work on January 14, 2019 with restrictions of lifting up
to 10 pounds continuously; pushing/pulling up to 10 pounds continuously, no driving of employing
establishment vehicles; and no bending or twisting of the trunk. A report of the same date from
Dr. Galeano diagnosed strain of the thoracic region and strain of the neck muscle. He stated that
appellant was approximately 25 percent of the way toward meeting the physical requirements of
her position. Dr. Galeano recommended that appellant return to work on that date with restrictions
of lifting up to 10 pounds continuously, pushing/pulling up to 10 pounds continuously, and no
driving of employing establishment vehicles.
In an undated attending physician’s report (Form CA-20), Dr. Galeano diagnosed
thoracic/back/neck strain, noting a period of partial disability beginning December 20, 2018, the
same date appellant was able to resume light work. He noted that appellant should be on modified
duty with restrictions of no driving company vehicles, no lifting or pushing over 10 pounds, and
sitting or walking as needed.
In a work activity status report dated January 22, 2019, Dr. Galeano diagnosed strain of the
muscle and tendon of an unspecified wall of the thorax and recommended that appellant return to
work on January 22, 2019 with restrictions of lifting up to 10 pounds continuously, pushing/pulling
up to 10 pounds continuously, no driving of employing establishment vehicles, and no bending or
twisting of the trunk. In a report of the same date, he diagnosed strain of the thoracic region and
recommended work restrictions of lifting up to 10 pounds continuously, pushing/pulling up to 10
pounds continuously, and no driving of employing establishment vehicles.
In a work activity status report dated January 28, 2019, Dr. Galeano recommended that
appellant return to regular duty as of January 28, 2019. However, in another work activity status
report of the same date, he recommended that she return to work on January 28, 2019 with the
same restrictions as in his January 22, 2019 report. Dr. Galeano diagnosed thoracic strain in
another report of the same date and recommended the same work restrictions. He repeated
appellant’s work restrictions regarding lifting/pushing/pulling, driving, and bending/twisting in a
work activity status report dated February 4, 2019.
By decision dated February 22, 2019, OWCP found that appellant was not entitled to
continuation of pay for the period December 21, 2018 through February 3, 2019 because the

3

medical evidence of record did not establish that she was temporarily totally disabled from work
during that period.
On March 6, 2019 appellant requested an oral hearing before an OWCP hearing
representative.
In a letter dated June 7, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Monday, July 9, 2019 at 11:30 a.m. Eastern Standard Time
(EST). The notice included a toll-free number to call and provided the appropriate passcode.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated July 19, 2019, OWCP’s hearing representative determined that appellant
had abandoned her request for an oral hearing, finding that appellant had received a 30-day
advance written notice of the hearing scheduled for July 9, 2019, but failed to appear. OWCP’s
hearing representative further noted that there was no indication in the case record that appellant
had contacted OWCP to request a postponement prior to the hearing or provide an explanation to
OWCP for her failure to appear at the hearing within 10 days of the scheduled hearing.
Consequently, appellant was deemed to have abandoned her request for an oral hearing.
LEGAL PRECEDENT -- ISSUE 1
Section 8118 of FECA provides for payment of continuation of pay, not to exceed 45 days,
to an employee who has filed a claim with her immediate supervisor for a period of wage loss due
to a traumatic injury on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of FECA.3
FECA’s implementing regulations provide in pertinent part:
“An employer shall continue the regular pay of an eligible employee without a break in time
for up to 45 calendar days, except when, and only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of injury;
(d) The injury was not reported until after employment has been terminated;
(e) The injury occurred off the employing agency’s premises and was otherwise not
within the performance of official duties;

3
5 U.S.C. § 8118; 20 C.F.R. §§ 10.5(q), (ee); A.F., Docket No. 14-1838 (issued January 22, 2015); Brady L.
Fowler, 44 ECAB 343, 351 (1992).

4

(f) The injury was caused by the employee’s willful misconduct, intent to injure or kill
himself or herself or another person, or was proximately caused by intoxication by
alcohol or illegal drugs; or
(g) Work did not stop until more than 45 days following the injury.”4
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant was not entitled to
continuation of pay.
Appellant submitted reports from Dr. Jones and Galeano from December 20, 2018
containing work restrictions related to appellant’s accepted conditions of sprain of ligaments of
the thoracic spine and strain of the muscle, fascia, and tendon at the neck level. On February 22,
2019 OWCP found that appellant was not entitled to continuation of pay for the period
December 21, 2018 through February 3, 2019 because the medical evidence did not establish that
she was temporarily totally disabled from work during this period, though it did establish that she
was released to return to work with restrictions. The Board finds that this denial of continuation
of pay was erroneous, as it was not based on any of the categories outlined in section 10.220 of
FECA’s implementing regulations.5 Therefore, upon return of the case record OWCP shall pay
continuation of pay compensation as set forth in this decision.
CONCLUSION
The Board finds appellant has established entitlement to continuation of pay for the period
December 21, 2018 through February 3, 2019.

4

20 C.F.R. § 10.220. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial
Payments, Chapter 2.807.11 (June 2012).
5
Supra note 4. There is no evidence of record that the employing establishment provided appellant a written job
offer advising her that a modified job was available.

5

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6