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

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

Docket No. 16-0587
Issued: August 23, 2016

Case Submitted on the Record

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

JURISDICTION
On February 8, 2016 appellant, through counsel, filed a timely appeal from a
December 11, 2015 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.
ISSUE
The issue is whether appellant has established more than 21 percent permanent
impairment of her right lower extremity, for which she received a schedule award.
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.

FACTUAL HISTORY
On April 18, 2012 appellant, then a 56-year-old modified city carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her right knee when she stepped
down off a sidewalk. She stopped work on the date of injury and returned to work full duty on
April 20, 2012. OWCP accepted the claim for right knee medial meniscus tear, sprain, and
contusion. Appellant stopped work on July 24, 2012 to undergo an authorized right knee
arthroscopic surgery with partial medial meniscectomy. OWCP paid her compensation benefits
and retained her on the periodic compensation rolls.
Under OWCP File No. xxxxxx181 OWCP also accepted aggravation of right knee
osteoarthritis as of April 18, 2012. This claim was consolidated with the current claim (OWCP
File No. xxxxxx967) as the master file.
On May 6, 2013 appellant underwent an authorized right knee arthroplasty (total knee
replacement).
In a June 25, 2013 report, Dr. Phillip Kinman, an orthopedic surgeon, indicated that
appellant was doing well following right knee joint replacement. He noted that she reported
increasing problems with the left knee following the right knee replacement surgery and that the
left knee x-rays disclosed arthritis. Dr. Kinman opined that both knees developed arthritis as a
result of her many years of walking a mail route but that the left knee arthritis seemed to be
increased.
In an August 26, 2013 report, Dr. Kinman reiterated that appellant had developed arthritis
in both knees as a result of many years of walking on her mail route. He indicated that when
appellant was last seen, she had more pain with her left side which was related to work-type
problems but also due to throwing her weight on this side after the total right knee replacement.
In a September 14, 2013 report, an OWCP medical adviser reviewed the medical record
and opined that appellant’s left knee condition was not consequential to the accepted right knee
medial meniscus tear and aggravation of arthritis of the right knee. He indicated that there was
no documented evidence of arthritis in the left knee. If appellant had left knee arthritis, then it
was likely due to factors other than work. The medical adviser explained that a right knee
arthroplasty would not cause an exacerbation of arthritis because the knee could handle
physiologic and supraphysiologic loads.
In an October 4, 2013 letter, OWCP requested that Dr. Kinman review OWCP’s medical
adviser’s September 14, 2013 report regarding a consequential injury and provide objective
medical evidence regarding left knee arthritis.
In an October 11, 2013 letter, Dr. Kinman’s office indicated that he had retired as of
September 3, 2013. All the medical records from his office pertaining to appellant’s left knee
condition were attached.
OWCP referred the medical record, a statement of accepted facts, and a list of questions
to Dr. Norman Mindrebo, a Board-certified orthopedic surgeon, for a second opinion medical
examination of appellant to determine whether she sustained an injury to her left knee as a result
2

of the work injury on or about April 18, 2012 and whether she continued to have
residuals/disability as a result of the accepted, work-related right knee injury.
In a January 23, 2014 report, Dr. Mindrebo noted that right x-ray films of the right knee
dated May 21 and December 10, 2013 provided by appellant showed a well-fixed right knee
prosthesis. A June 25, 2013 x-ray showed advanced arthritis in the left knee. Examination
findings of the right knee showed full flexion and a well-healed incision. There was no
instability or crepitus. Dr. Mindrebo opined that appellant reached maximum medical
improvement with respect to the right knee. He opined that there was no employment-related
left knee condition referable to the April 18, 2012 work incident. Dr. Mindrebo also opined that
no further treatment was required for the right knee besides periodic x-rays to monitor the knee
replacement.
In a March 26, 2014 supplemental report, Dr. Mindrebo opined that the left knee arthritis
was not causally related to walking at work. He explained that the left knee arthritis was
congenital or resulted from inflammatory disease. Dr. Mindrebo explained that, while appellant
had to initially place more weight on the left knee while recovering from right knee replacement,
it was a temporary situation and insufficient to aggravate or worsen the left knee arthritis.
In a January 27, 2014 report, Dr. Gregory M. Whitsett, an orthopedic surgeon, indicated
that the right knee x-rays of that date showed the knee replacement in place with no
complications. Right knee had range of motion of 0 to 120 degrees and was well-balanced
ligamentously. There was no effusion and appellant was neurovascularly intact distally.
Effective August 25, 2014, appellant elected retirement benefits from the Office of
Personnel Management.
On October 30, 2014 appellant submitted a Form CA-7 claim for compensation
requesting schedule award compensation benefits.
In a December 16, 2014 report, Dr. Neil Allen, an internist and neurologist, provided
examination findings of November 19, 2014. He opined that appellant had reached maximum
medical improvement and her current symptoms were pain, instability, clicking, swelling, and
limited mobility. Examination revealed stiff, antalgic gait, negative for atrophy at calf. Global
tenderness through the joint, but negative for crepitus. Range of motion was 110 degrees of
flexion -5 degrees of extension on right side and grade 1 posterior drawer and grade 1
Lachman’s. Based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment3 (hereinafter A.M.A., Guides), and citing to tables and
figures, Dr. Allen opined that appellant had 31 percent right lower extremity impairment. Under
Table 16-3, page 511, he determined class 3 grade C for total knee replacement with a “fair”
result (37 percent), with modifiers of 1 for functional history (antalgic gait), 1 for physical
examination (mild palpatory findings, negative atrophy, full range of motion), and 4 for clinical
studies for a net minus 3 adjustment. This equated to class 3, grade A or 31 percent impairment
of the right lower extremity.

3

A.M.A., Guides (6th ed. 2008).

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In a March 27, 2015 report, an OWCP medical adviser reviewed the record, the statement
of accepted facts, and Dr. Allen’s December 16, 2014 report. He opined that appellant had 21
percent right lower extremity impairment. Under Table 16-3, page 511, the medical adviser
determined class 2 grade C for total knee replacement with a “good” result (25 percent), with
modifiers of 1 for functional history, 1 for physical examination and 1 for clinical studies for a
net minus 3 adjustment. This equated to class 2, grade A or 21 percent impairment. The medical
adviser placed appellant at maximum medical improvement as of January 22, 2014, the date of
Dr. Mindrebo’s examination. He stated that he used the diagnosis of a total knee arthroplasty
with good result as Dr. Mindrebo indicated that appellant had no instability while Dr. Allen
indicated that appellant had instability in the prosthesis and 110 degrees range of motion. The
medical adviser explained that a total knee examination is different than a native knee
examination and that Dr. Mindrebo has more experience with total knee examinations since he is
an orthopedic surgeon and confirmed that the knee was stable. He additionally noted that
Dr. Allen gave a grade modifier 4 to appellant’s clinical studies, but the total knee was done for
degenerative joint disease which is primarily diagnosed using radiographs. Per Dr. Allen’s note,
the radiographs showed mild degenerative joint disease; therefore, it should have been a grade
modifier 1.
By decision dated April 7, 2015, OWCP awarded appellant a schedule award for 21
percent permanent impairment of the right lower extremity. The award ran 60.48 weeks from
January 22, 2014 to October 23, 2015. The date of maximum medical improvement was
August 26, 2014.
On April 17, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP Branch of Hearings and Review hearing representative, which was held on
November 4, 2015. At the hearing, counsel argued that the medical adviser did not provide
rationale for a rating based on a good result rather than a fair result for the knee replacement
surgery. No additional evidence was received into record.
By decision dated December 11, 2015, OWCP’s hearing representative affirmed
OWCP’s April 7, 2015 decision. He found that OWCP properly referred the case to OWCP’s
medical adviser and relied on his opinion in granting the schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

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all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
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).6
With respect to knee impairment, the A.M.A., Guides provide a regional grid at Table 16-3. The
class of impairment Class of Diagnosis (CDX) is determined based on specific diagnosis, and
then the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH), Table 16-6, Physical
Examination (GMPE), Table 16-7, and Clinical Studies (GMCS), Table 16-8. The adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7 The permanent impairment
must be causally related to an accepted employment injury.8
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.9 The medical adviser’s opinion
can constitute the weight of the medical evidence in a schedule award case where the percentage
estimate by the attending physician is not properly based on the A.M.A., Guides.10
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.11 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.12
ANALYSIS
The Board finds that there is an unresolved conflict in the medical opinion evidence.
5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

Supra note 2 at section 1.3, The ICF: A Contemporary Model of Disablement.

7

The net adjustment is up to +2 (grade E) or -2 (grade A).

8

Rosa Whitfield Swain, 38 ECAB 368 (1987).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (February 2013).
10

Linda Beale, 57 ECAB 429 (2006).

11

R.C., Docket No. 12-437 (issued October 23, 2012).

12

20 C.F.R. § 10.321.

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OWCP accepted the conditions of right knee medial meniscus tear, sprain and contusion.
Under claim number xxxxxx181, it had accepted that appellant sustained an aggravation of right
knee osteoarthritis as of April 18, 2012 and that claim was consolidated with the current claim.
Compensation benefits were paid, including a July 24, 2012 right knee arthroscopic surgery with
partial medial meniscectomy and a May 6, 2013 right knee arthroplasty (total knee replacement).
OWCP issued a schedule award for 21 percent permanent impairment of the right lower
extremity on April 7, 2015.
There remains an unresolved conflict as to the impairment related to her right lower
extremity between appellant’s treating physician and OWCP’s medical adviser. In a
December 16, 2014 report, Dr. Allen opined that appellant had 31 percent right lower extremity
impairment based on a total knee replacement with a fair result. In a March 27, 2015 report, the
medical adviser opined that appellant had 21 percent right lower extremity impairment based on
a total knee replacement with a good result. Under Table 16-3, page 511 of the A.M.A., Guides,
a total knee replacement is classified as good result when the knee is in good position, stable, and
functional. A fair result is obtained when the knee replacement is in fair position, mild
instability and/or mild motion deficit. The dispute between Dr. Allen and OWCP’s medical
adviser centers on whether appellant’s total knee replacement had a “good” or “fair” result
when rating appellant pursuant to Table 16-3, page 511 of the A.M.A., Guides.
If there is disagreement between OWCP’s medical adviser and appellant’s physician,
OWCP will appoint a third physician who shall make an examination.13 For a conflict to arise,
the opposing physician’s viewpoints must be of virtually equal weight and rationale.14 The
Board finds that the two medical opinions of Dr. Allen and OWCP’s medical adviser are of equal
weight. Accordingly, there remains an unresolved conflict in the medical evidence.
The Board finds that a conflict exists in the medical evidence with regard to the amount
of appellant’s impairment of her right lower extremity. The Board will remand the case for
referral to an impartial medical specialist for resolution of the conflict in the medical opinion
evidence. After such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical opinion evidence.

13

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

14

Darlene R. Kennedy, 57 ECAB 414 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the December 11, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further consideration
consistent with this opinion.
Issued: August 23, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

_________________________________________
K.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SYSTEMS AIR COMMAND-STATIONS,
Cherry Point, NC, Employer
_________________________________________

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

Docket No. 11-1849
Issued: May 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 9, 2011 appellant, through his attorney, filed a timely appeal from the
March 3, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
found that appellant did not sustain an injury in the performance of duty. 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 his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on April 26, 2010.
FACTUAL HISTORY
On May 6, 2010 appellant, then a 59-year-old electrical equipment repair operator, filed a
traumatic injury claim (Form CA-1) alleging that on April 26, 2010 he leaned back in his chair
1

5 U.S.C. § 8101 et seq.

and it flipped, causing him to injure his low back and right elbow. He noticed that screws were
missing from the chair but did not stop work.
Appellant submitted reports dated May 13 to July 28, 2010 from Dr. Brian J. Battersby,
Jr., a Board-certified orthopedic surgeon and treating physician, who noted that appellant
presented with posterior lumbar pain and aching. Dr. Battersby listed the date of injury as
April 26, 2010 and noted that the onset of back pain began at work after a fall. He advised that
the location of the pain was in the lower lumbar region bilaterally and the quality was achy and
dull. Appellant described the pain as a 4 out of 10 and the severity was moderate. Dr. Battersby
provided restrictions on appellant’s activity which included reaching overhead, lifting and
bending. He diagnosed degenerative lumbar disease and a lumbosacral intervertebral disc. In
subsequent reports, Dr. Battersby provided an additional diagnosis of lumbago. His restrictions
were modified to include no lifting greater than 20 pounds.
By letter dated August 12, 2010, OWCP advised appellant that additional factual and
medical evidence was needed. Appellant was requested to provide a physician’s opinion
supported by a medical explanation as to how the reported work incident caused the claimed
injury. OWCP explained that a physician’s opinion on causal relation was crucial to his claim
and allotted 30 days to submit the requested information.
In an August 16, 2010 report, Dr. Battersby repeated his findings and adjusted appellant’s
lifting restriction to no more than 30 pounds. OWCP also received treatment notes from a
physical therapist.
By decision dated September 23, 2010, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that his back condition was causally related to the
April 26, 2010 incident.
Appellant requested reconsideration on January 13, 2011. He explained that he was
testing wires and sat down in his chair. When appellant leaned back, the chair moved backward
and he fell striking the concrete floor hard, jarring and injuring his back. He remained there until
the pain subsided. Appellant noted that upon examining the chair, he discovered that screws had
been removed. He reported the incident to his supervisor but the individual he suspected of
removing the screws would not admit to doing so.
OWCP subsequently received additional copies of previous reports. In a September 14,
2010 report of record, Dr. Walter L. Clements, a physician specializing in occupational
medicine, provided a lifting restriction of no more than 30 pounds.
In a September 9, 2010 report, Dr. Battersby noted that he treated appellant for an
on-the-job injury to his low back. Appellant related a history that his injury occurred when he
was leaning back while sitting in his chair when if flipped over. He presented with posterior
lumbar pain, aching and stiffness with symptoms reported as being moderate and continuous in
duration. On examination there was mild-to-moderate tenderness in the lumbar area and the
sacral coccygeal and pelvis areas. Dr. Battersby determined that appellant had mildly restricted
movement in all directions and pain. He stated that x-rays were taken and revealed degenerative
changes in the lumbar area. Dr. Battersby advised that appellant was placed on an anti-

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inflammatory medication, started with physical therapy and returned to work with restrictions.
Appellant continued to have low back pain and the work restrictions were continued.
Dr. Battersby diagnosed degenerative lumbar disease and explained that it was a preexisting
condition. He explained that appellant did not have any symptoms regarding his back until his
injury at work and opined, “therefore I feel this [was] an aggravation of the degenerative process
in his back and is directly related to his injury at work.” In an October 13, 2010 report,
Dr. Battersby stated, “we are not sure why [workers’ compensation] will not approve [appellant],
he has an obvious problem, it happened at work, it [i]s documented.”
By decision dated March 3, 2011, OWCP denied modification of its September 23, 2010
decision.
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 FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
ANALYSIS
Appellant alleged that he sustained an injury to his back on April 26, 2010 when he
leaned back in his chair and he fell to the floor. OWCP found that the April 26, 2010 incident,
occurred as alleged.
Regarding the medical component of fact of injury, the Board notes that the medical
evidence submitted by appellant generally supports that his back was injured on April 26, 2010.
The record contains several reports from Dr. Battersby who diagnosed degenerative lumbosacral
disc and lumbago. He obtained a history that appellant leaned back in a chair and fell to the
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

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

6

Id.

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floor. Dr. Battersby stated that appellant sustained an aggravation to his preexisting degenerative
lumbar disease. He noted treating appellant for an on-the-job injury to his low back.
Dr. Battersby described an accurate history of the incident accepted in this case. He explained
that appellant presented on May 13, 2010 with posterior lumbar pain, aching and stiffness.
Dr. Battersby advised that x-rays revealed degenerative changes in the lumbar region and
diagnosed preexisting degenerative lumbar disease. He noted that appellant did not have any
symptoms regarding his back until the incident at work and stated, “therefore I feel this [was] an
aggravation of the degenerative process in his back and is directly related to his injury at work.”
Although Dr. Battersby’s reports are not sufficiently rationalized to meet appellant’s burden of
proof, they support the claim and are sufficient to require further development.7
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.8
The Board will remand the case to OWCP for appropriate further development on
whether appellant sustained an aggravation of his preexisting lumbar degenerative disease on
April 26, 2010. Following this, and any other further development as deemed necessary, OWCP
shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

John W. Butler, 39 ECAB 852 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the March 3, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision of the Board.
Issued: May 1, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1213
Issued: December 20, 2013

Case Submitted on the Record

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

On April 22, 2013 appellant, through counsel, filed a timely appeal from a January 11,
2013 decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim
for recurrence of disability on December 9, 2011. The Board docketed the appeal as No. 131213.1
The Board has duly reviewed the record and finds that the case is not in posture for
decision. By decision dated December 3, 2009, OWCP found that appellant’s actual earnings as
a medical support assistant fairly and reasonably represented her wage-earning capacity with
zero loss. On December 21, 2011 appellant filed a recurrence claim, indicating that she stopped
work on December 9, 2011. By decision dated March 14, 2012, OWCP denied her recurrence
1

On September 26, 2001 appellant, a medical support assistant, sustained an employment-related laceration to the
head when she was assaulted by a coworker. The claim was later expanded to include post-traumatic stress disorder
(PTSD). Appellant did not return to work following the September 26, 2001 work injury, and was placed on the
periodic compensation rolls. After vocational rehabilitation, appellant began private employment as an
administrative assistant on July 8, 2005. This employment ended on April 12, 2006. OWCP accepted the
recurrence and appellant was returned to the periodic rolls. She had a brief return to work in 2008, and was again
placed on the periodic rolls. Appellant relocated to North Carolina and on September 29, 2008 began work as a
medical support assistant at a Veterans facility in Raleigh, North Carolina. She stopped work on December 9, 2011.

claim on the grounds that the medical evidence was insufficient to establish that her accepted
condition had worsened. On August 15, 2012 an OWCP hearing representative affirmed the
March 14, 2012 decision.2 In a merit decision dated January 11, 2013, OWCP denied appellant’s
recurrence claim.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
December 3, 2009. It is well established that a claimant may establish that a modification of a
wage-earning capacity is warranted if there is a material change in the nature and extent of an
injury-related condition, or a showing that the original determination was, in fact, erroneous.3
Appellant’s submission of a recurrence claim on December 21, 2011 for a recurrence of
disability on December 9, 2011 should thus be regarded as a request for modification of the
wage-earning capacity determination. The Board has held that, when a wage-earning capacity
determination has been issued and appellant submits evidence with respect to disability for work,
OWCP must evaluate the evidence to determine if modification of wage-earning capacity is
warranted.4 In this case, OWCP adjudicated the claim for total disability beginning December 9,
2011 as a recurrence claim.
The Board finds that OWCP should have adjudicated appellant’s recurrence claim for
total disability compensation beginning December 9, 2011 as whether she had established that
the wage-earning capacity determination should be modified.5 The Board will therefore remand
the case to OWCP for proper adjudication, to be followed by an appropriate merit decision to
preserve appellant’s appeal rights.

2

The hearing representative noted that appellant made reference to new employment incidents and filed a new
claim, adjudicated under file number xxxxxx228.
3

P.C., 58 ECAB 405 (2007).

4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

5

F.B., Docket No. 09-99 (issued July 21, 2010); see also M.D., Docket No. 12-1317 (issued December 21, 2012).

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IT IS HEREBY ORDERED THAT the January 11, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: December 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-0352
Issued: April 14, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On December 18, 2015 appellant filed a timely appeal from a November 20, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Board
docketed the appeal as 16-0352. In its November 20, 2015 decision upon reconsideration,
OWCP declined to review the merits of appellant’s claim and affirmed its prior decision of
April 21, 2014, which denied appellant’s claim for consequential injury arising from her
accepted October 9, 1996 injury. It stated that appellant had not submitted sufficient evidence to
warrant review of this decision.
The Board has duly considered the matter and notes that, in the case of William A.
Couch,1 it held that, when adjudicating a claim, OWCP is obligated to consider all evidence
properly submitted by a claimant and received by OWCP before the final decision is issued. On
reconsideration appellant submitted progress notes dating from January 13 through October 13,
2015 from her treating physician, Dr. Arsel Ahmad, Board-certified in physical medicine and
rehabilitation. OWCP further requested and received a physician’s second opinion, from
Dr. Donald C. Mann, Board-certified in neurology, dated July 28, 2015, in which the second
opinion physician discussed findings of residuals of an accepted condition (reflex sympathetic
dystrophy) in both appellant’s arm and leg. These reports were received prior to OWCP’s
November 20, 2015 decision.
1

41 ECAB 548 (1990).

In its November 20, 2015 decision, OWCP stated: “The evidence submitted and
reviewed in support of your reconsideration request includes your statement and a medical report
dated April 1, 2015. [. . .] The medical evidence submitted with your request consists of a report
from Jared Stefanko, DO, dated April 1, 2015, showing progress notes and treatment
recommendations for left shoulder and scapular pain and left cervical radiculopathy.”2
While OWCP is not required to list every piece of evidence submitted to the record, it is
clear that neither the numerous reports submitted from appellant’s treating physician from
January 13 through October 13, 2015, nor the second opinion report requested by OWCP itself,
were reviewed before the issuance of its November 20, 2015 decision. Whether it receives
relevant evidence on the date of the decision or several days before, such evidence must be
considered.3 In this case, each of these reports were received well in advance of OWCP’s
November 20, 2015 decision. As the Board’s decisions are final as to the subject matter
appealed, it is crucial that all evidence relevant to the subject matter of the claim properly
submitted to OWCP be reviewed and addressed.4 Accordingly, the case is remanded for proper
review of the evidence and, following any necessary further development, the issuance of an
appropriate final decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2015 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: April 14, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

This purported April 1, 2015 medical report from Dr. Stefanko could not be located in the case record.

3

J.I., Docket No. 12-1062 (issued December 12, 2012); William McKennon, 51 ECAB 145 (1999).

4

See Yvette N. Davis, 55 ECAB 475 (2004).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Memphis, TN, Employer
__________________________________________

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

Docket No. 10-1700
Issued: April 22, 2011

Case Submitted on the Record

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

JURISDICTION
On June 7, 2010 appellant filed a timely appeal from a December 15, 2009 merit decision
of the Office of Workers’ Compensation Programs denying his claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on June 4, 2009 in the performance of duty.
FACTUAL HISTORY
On June 17, 2009 appellant, then a 49-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that on June 4, 2009 he sustained a lower back injury when he was
1

5 U.S.C. § 8101 et seq.

transporting a patient and reached across the bed so that the patient would not fall out. He
notified his employer on June 10, 2009 of his injury. The employing establishment controverted
the claim as appellant did not immediately report his injury to a supervisor.
By letter dated June 23, 2009, the Office informed appellant that no evidence had been
received in support of his claim, requested additional factual and medical evidence, and asked
him to respond to the provided questions within 30 days.
In an undated narrative statement, appellant reported that he was pulling a patient back in
bed and felt a strain/pulling pain in his lower back. He continued to work because he was the
only health technician assigned to that shift and the emergency room was at full capacity. The
next day, the pain in appellant’s lower back was unbearable, throbbing and radiating down to his
leg. Appellant called his provider clinic at Veterans Administration Medical Center (VAMC)
and was told by a nurse that he should take a couple days off from work. He went to the clinic
on June 10, 2009 for clearance to return to work and was told that he could not return to work
because he was still in pain. Appellant did not seek immediate medical attention because he
thought the pain would go away with rest. He noted a prior history of back problems but had
been doing fine until he strained his back on June 4, 2009.
On June 15, 2009 Dr. Margarethe Hagemann, Board-certified in internal medicine and
chief of staff at VAMC, signed and approved appellant’s progress notes for the period of
April 30 to June 15, 2009. In an April 30, 2009 progress note, Dr. Carlos Cyrus, Board-certified
in physical medicine and rehabilitation, reported that appellant was evaluated for a spine
injection, complaining of central low back pain with intermittent radiation down the left posterior
thigh. He noted a history of lumbar laminectomy without relief and multiple spinal injections
with no relief. Dr. Cyrus noted that appellant did receive bilateral injections with good results.
He diagnosed postlaminectomy syndrome of the lumbar region and sacroiliitis.
In June 6 and 8, 2009 progress notes, appellant contacted the VAMC requesting renewal
of his medication for chronic pain management. In June 9 and 10, 2009 telephone calls, Chandra
O’Brien, a registered nurse, noted that he called stating that he needed to be seen so that he could
return to work. Ms. O’Brien indicated that appellant would need to be evaluated and would be
restricted to no bending, twisting, turning or lifting over 25 pounds.
In a June 10, 2009 progress note, Dr. Hagemann stated that appellant came into the clinic
reporting that he hurt his back the week before when he attempted to move a patient. Appellant
reported that he went home at the end of his shift and could hardly move the following day,
having to crawl to the bathroom. Dr. Hagemann noted that appellant was unable to stand up
straight and that due to the repetitive motions of his job, i.e., twisting, turning and lifting, he
would be off work until June 24, 2009.
In a June 24, 2009 medical report, Dr. Moacir Schnapp, a treating physician, stated that
appellant had a workers’ compensation injury on June 4, 2009 which resulted in lower back pain.
He noted appellant’s medical history of problems with his lower back over several years.
Dr. Schnapp reported that appellant experienced pain all the way across his back which was
aching, sharp, throbbing and worse with standing and sitting for prolonged periods of time. He

2

noted that appellant was getting up with some difficulty and walking with some stiffness.
Dr. Schnapp diagnosed lumbar spondylosis and sacroiliitis.
In a June 24, 2009 VAMC certification of visit, John Elli, a treating physician assistant,
reported that appellant was having nerve blocks done on June 26, 2009 and could not return to
work until the blocks were performed.
In a June 26, 2009 medical report, Dr. Schnapp performed a bilateral lumbar facet L4-5,
L5-S1 block under fluoroscopic guidance and a bilateral sacroiliac joint injection under
fluoroscopic guidance. He reported that the procedure was done to treat appellant’s severe lower
back pain.
By decision dated August 3, 2009, the Office denied appellant’s claim finding that the
medical evidence did not establish that the lower back condition was related to the accepted
June 4, 2009 employment incident.
On August 19, 2009 appellant requested review of the written record.2 In support of his
request, he stated that, though he has had previous back problems, it had never kept him from his
employment. Appellant noted that his June 4, 2009 episode occurred at work and was different
from his usual back problems.
In a July 22, 2009 VEMA medical report, Physician Assistant Elli stated that appellant
was seen at the clinic about one week after the work incident and was diagnosed with acute
musculoskeletal strain of the lumbar region and suspected aggravation of underlying sacroilitis.
By decision dated December 15, 2009, an Office hearing representative affirmed the
August 3, 2009 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim 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, the Office begins with an analysis of whether fact of injury has been
2

Appellant also requested reconsideration of the Office decision on August 19, 2009. By letter dated
September 16, 2009, the Office deleted the reconsideration request, sending the claim to the Branch of Hearings and
Review.
3

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

4

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

3

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 a causal relationship between the condition, any attendant disability claimed
and the employment event or incident, the employee must submit rationalized medical opinion
evidence based on a complete factual and medical background, supporting such a causal
relationship.6 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. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.7
The term physician is defined under section 8101(2) and physical therapists are not
physicians under the Act; therefore, their opinions do not constitute probative medical evidence.8
ANALYSIS
The Office accepted that the June 4, 2009 incident occurred as alleged. The issue is
whether appellant established that the incident caused a back injury. The Board finds that he did
not submit sufficient medical evidence to support that his lumbar condition is causally related to
the June 4, 2009 employment incident.9
In a June 10, 2009 medical report, Dr. Hagemann stated that appellant came into the
clinic reporting that he hurt his back the previous week when he attempted to move a patient at
work. She noted that he was unable to stand up straight and was restricted from performing the
repetitive motions of his job such as twisting, turning and lifting. Dr. Hagemann did not opine,
however, that the condition occurred from the accepted one-time event. Further, she did not
diagnose appellant’s condition, identify its cause, or even mention the June 4, 2009 employment
5

Elaine Pendleton supra note 2.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

5 U.S.C. § 8101(2). See Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

9

See Robert Broome, 55 ECAB 339 (2004).

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incident. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10 Without medical reasoning explaining how the June 4, 2009 employment incident
caused the back condition, the report is insufficient to meet appellant’s burden of proof.11
In a June 24, 2009 medical report, Dr. Schnapp reported that appellant had a workers’
compensation injury on June 4, 2009 and was having lower back pain. He diagnosed lumbar
spondylosis and sacroilitis and noted that appellant had preexisting problems with his lower back
for several years. On June 26, 2009 Dr. Schnapp performed a bilateral lumbar facet block and a
bilateral sacroiliac joint injection. The Board finds that the opinion of Dr. Schnapp is not well
rationalized. Dr. Schnapp did not provide an adequate explanation of how the accepted incident
caused or contributed to appellant’s diagnosed condition. While he noted that appellant
underwent prior treatment for his back condition, Dr. Schnapp did not address how the June 4,
2009 incident aggravated appellant’s sprain, lumbar spondylosis and sacroilitis. He noted in
general that appellant had a work injury on June 4, 2009 but never stated that his work incident
caused his back condition and failed to provide a well-rationalized opinion on causal
relationship. Medical reports not containing adequate rationale on causal relationship are of
diminished probative value and are insufficient to meet an employee’s burden of proof.12
Lacking a complete and accurate factual background, sufficient medical record review and
rationale, Dr. Schnapp’s reports are insufficient to establish that appellant’s lumbar condition
was causally related to the June 4, 2009 employment incident.
In an April 30, 2009 report, Dr. Cyrus stated that appellant had a history of lumbar
laminectomy without relief. This evidence does not establish causal relationship because it is
dated before the employment incident. Further, the report suggests that appellant’s back
condition resulted from a previous incident rather than a new traumatic injury.
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s back condition and the June 4, 2009 employment incident.
Registered nurses, licensed practical nurses and physicians’ assistants are not physicians as
defined under the Act; therefore, their opinions are of no probative value.13
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.14 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.15 Causal relationships must be established by rationalized medical opinion evidence.
10

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

C.B., Docket No. 08-1583 (issued December 9, 2008).

12

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

5 U.S.C. § 8102(2) of the Act provides as follows: (2) physicians includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.
14

Daniel O. Vasquez, 57 ECAB 559 (2006).

15

D.D., 57 ECAB 734 (2006).

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Appellant failed to submit such evidence and the Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic injury on June 4, 2009 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 17-0833
Issued: September 7, 2017

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 March 6, 2017 appellant, through counsel, filed a timely appeal from a January 17,
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 has established an injury causally related to the accepted
March 31, 2013 employment incident.
FACTUAL HISTORY
On April 8, 2013 appellant, then a 38-year-old mail handler, filed a recurrence of
disability claim (Form CA-2a) alleging that on March 31, 2013 she felt a sharp pain and stiffness
in her neck while opening bags. She reported the date of the original injury as August 30, 2007.3
Appellant indicated that she had recovered from the August 30, 2007 injury, but had sustained
another injury on March 31, 2013.
In an April 4, 2013 letter, appellant noted that on March 29, 2013 she worked on a sorter
machine, and loaded tubs and on March 30, 2013 she worked on the sorting machine. On
March 31, 2013 appellant was opening bags and felt a sharp pain in her back and stiffness in her
neck.
By letter dated April 25, 2013, OWCP indicated that the claim would be developed as a
new injury. It noted that appellant’s claim indicated that she was claiming a new traumatic
injury on March 31, 2013.
Appellant submitted a form report dated April 1, 2013 from Dr. Theodore Xenos, a
chiropractor. Dr. Xenos diagnosed exacerbation of cervical and lumbar radiculopathy, and
indicated that appellant was disabled.
In a May 10, 2013 letter, OWCP advised appellant of the evidence needed to support her
claim. It noted that a chiropractor is considered a physician only if diagnosing a subluxation as
demonstrated by x-ray. Appellant was afforded 30 days to submit the necessary medical
evidence. She did not respond within the time allotted.
By decision dated June 14, 2013, OWCP denied appellant’s claim for compensation. It
found that she had established that the incident occurred, as alleged, but that she had not
submitted probative medical evidence of a diagnosed condition causally related to the accepted
incident.
On October 1, 2013 appellant requested reconsideration. She submitted an August 19,
2013 report from Dr. R.C. Krishna, a Board-certified neurologist. Dr. Krishna provided a history
that appellant was involved in a work accident on March 31, 2013, and was unloading mail for
three consecutive days. He wrote that appellant presented with neck and low back pain,
radiating into her upper and lower extremities. Dr. Krishna reviewed results of diagnostic

3

Appellant had a prior claim for a traumatic injury on August 30, 2007 accepted for cervical and lumbar strains,
assigned OWCP File No. xxxxxx761.

2

studies and provided results on examination.4 He reported that appellant’s clinical features were
consistent with exacerbation of cervical and lumbar injuries, multilevel cervical and lumbosacral
disc bulges, herniations resulting in radiculopathy, and cervical and lumbar ligamentous
instability. Dr. Krishna found that appellant was totally disabled and opined that “the incident
that the patient described is the competent producing medical cause of the injury or illness. The
patient’s complaints are consistent with the history of injury or illness. The history of the illness
and injury is consistent with the objective findings.”
Dr. Krishna also recommended an electromyogram/nerve conduction velocity (EMG/
NCV) study to rule out radiculopathy or nerve dysfunction. In a report dated August 27, 2013,
Dr. Anamilka Jain, a Board-certified physiatrist, reported the EMG/NCV showed left C5-6
radiculopathy.
Appellant submitted a narrative report from Dr. Xenos dated April 1, 2013. Dr. Xenos
provided a history that appellant had been stacking and lifting bags of mail. He provided results
on examination and diagnosed cervical, thoracic, and lumbar subluxation complex, aggravation
of previous ligament instability, aggravation of previous disc herniations in the lumbar and
cervical spine, and aggravation of previous cervical and lumbar radiculopathy. Dr. Xenos opined
that the events of March 31, 2013 were significant enough to aggravate and potentially reinjure
previous medical conditions.
In a report dated October 1, 2013, Dr. Xenos provided results on examination and
provided diagnoses that included multiple vertebral subluxation complex of the cervical thoracic
and lumbosacral spine. He also diagnosed cervical disc displacement, neck sprain, brachial
neuritis or radiculitis, lumbar sprain, and carpal tunnel syndrome. Dr. Xenos opined that
appellant was disabled from work.
By decision dated December 24, 2013, OWCP reviewed the merits of appellant’s claim,
but denied modification.
On April 2, 2014 appellant again requested reconsideration of her claim. She submitted a
March 5, 2014 report from Dr. Krishna. Dr. Krishna provided a history describing appellant’s
work duties from March 29 to 31, 2013. He provided results on examination. Dr. Krishna again
wrote that the incident that the patient described was the competent-producing medical cause of
the injury or illness. He also opined that appellant’s complaints were consistent with the history
of injury or illness, and the history was consistent with the objective findings.
Appellant also submitted additional medical evidence from Dr. Xenos and another
chiropractor, Dr. Gabriel Nadel. In reports dated January 21, February 10 and 20, and March 24,
2014, the diagnoses again included multiple vertebral subluxation complex of the cervical
thoracic and lumbosacral spine.

4

The record contains a June 5, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine, finding disc
bulges at L4-5 and L5-S1. A June 5, 2013 cervical MRI scan found multilevel disc bulges. The reports were
prepared by Dr. Satish Chandra, a radiologist.

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By decision dated June 30, 2014, OWCP reviewed the merits and denied modification. It
found the additional medical evidence submitted was insufficient to establish causal relationship.
On December 3, 2014 appellant again requested reconsideration. She submitted a
November 13, 2014 note from Dr. Krishna.5 Dr. Krishna wrote that appellant was not hurt over
a period of three days, but was injured on March 31, 2013. He opined that the incident that the
patient described is the competent-producing medical cause of the injury or illness, and her
complaints were consistent with the history of injury or illness. In a November 19, 2014 report,
Dr. Krishna provided results on examination. He again wrote that the clinical features were
consistent with exacerbation of cervical and lumbar injuries, multilevel cervical and lumbosacral
disc bulges, herniations resulting in radiculopathy, and cervical and lumbar ligamentous
instability. Dr. Krishna opined that, based on the history and his review of medical records, the
symptoms and injuries outlined above were causally related to the March 31, 2013 employment
incident. Appellant also submitted October 17, 20, and 30, 2014 reports from Dr. Xerxes
Oshider, another chiropractor, who diagnosed multiple vertebral subluxations of the cervical,
thoracic, or lumbar spines. He concluded that appellant was disabled from work due to the
March 31, 2013 employment incident.
Additionally, appellant submitted November 6 and 26, and December 3 and 10, 2014
reports from Dr. Xenos, who diagnosed multiple vertebral subluxations. Dr. Xenos too
concluded that appellant remained disabled from work due to the March 31, 2013 employment
incident.
By decision dated February 19, 2015, OWCP reviewed the merits of the claim, but
denied modification. It reviewed the medical evidence and found it was insufficient to establish
the claim.
On February 16, 2016 appellant again requested reconsideration. She submitted
additional reports from Dr. Krishna dated January 21, August 19, and October 21, 2015 and
January 20, 2016. In the January 20, 2016 report, Dr. Krishna again wrote that the symptoms
and diagnosed conditions sustained by appellant were causally related to the March 31, 2013
employment incident, and that appellant was totally disabled. Appellant also submitted
additional chiropractor reports.
By decision dated May 16, 2016, OWCP reviewed the merits of the claim, but denied
modification. It found the medical evidence of record insufficient to establish the claim for
compensation. OWCP explained that the reports from Dr. Krishna lacked medical rationale and
therefore did not establish causal relationship.
On November 7, 2016 appellant, through counsel, again requested reconsideration. The
medical evidence submitted included a September 7, 2016 report from Dr. Krishna, who
provided results on examination. Dr. Krishna repeated comments in earlier reports. Appellant
also submitted an April 27, 2016 report from Dr. Xenos. Dr. Xenos discussed a number of
orthopedic tests performed, such as Spurling’s test and straight leg raising. In a report dated
November 2, 2016, Dr. Gonzalo Corridori, a chiropractor, provided results on examination and
5

The note was included as an addendum to an April 4, 2013 report.

4

diagnosed multiple vertebral subluxations of the cervical, lumbar, and thoracic spines. He
opined that the mechanism of injury as described by appellant was the competent cause of the
reported injuries. Dr. Corridori did not discuss x-ray results.
By decision dated January 17, 2017, OWCP reviewed the merits of the claim, but denied
modification. It again found that the medical evidence of record did not establish the claim for
compensation. OWCP noted that Dr. Krishna had not explained, with supporting medical
rationale, how the employment incident caused a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish that he
or she sustained an injury while in the performance of duty.7 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. The second component is whether the employment incident caused a
personal injury, and generally this can be established only by rationalized medical evidence.8
Rationalized medical opinion evidence is medical evidence that includes an opinion
based on a complete factual and medical background of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
Appellant has alleged that she sustained an injury on March 31, 2013, when she was
opening bags of mail and felt a sharp pain and stiffness in neck. OWCP has accepted that the
employment incident occurred as alleged. The Board finds, however, that appellant has not
established that the diagnosed conditions were causally related to the accepted employment
incident.
In reviewing the medical evidence, the Board notes that appellant has submitted
numerous reports from Drs. Xenos, Oshider, and Corridori, chiropractors. As OWCP advised
appellant, under FECA, a chiropractor is a physician only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a

6

Supra note 2.

7

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

8

See John J. Carlone, 41 ECAB 354, 357 (1989).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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subluxation as demonstrated by x-ray to exist.10 While the chiropractor reports include
diagnoses of multiple vertebral subluxation complex of the cervical thoracic and lumbosacral
spine, they do not reference any x-rays. The chiropractor must not only diagnose a subluxation,
but establish that the diagnosis was based on x-ray evidence.11 The Board, therefore, finds the
evidence from Drs. Xenos, Oshider, and Corridori are of no probative value to the issue
presented.
Appellant also submitted numerous reports from Dr. Krishna, but it is not the number of
reports, but the care of analysis manifested and the medical rationale provided in the reports that
determines the probative value of the evidence.12 Dr. Krishna provided several diagnoses:
exacerbation of cervical and lumbar injuries; multilevel cervical and lumbosacral disc bulges;
herniations resulting in radiculopathy; and cervical and lumbar ligamentous instability. To
establish causal relationship between a diagnosed condition and the March 31, 2013 employment
incident, the physician must explain how the employment incident affected appellant’s neck or
back.13 If there is an aggravation, an opinion with respect to aggravation must differentiate
between the effects of the work-related injury or disease and the preexisting condition.14 The
Board has held that the physician must clearly explain the nature and extent of any aggravation,
including whether temporary or permanent.15 While Dr. Krishna opined that the employment
incident was a competent cause of the diagnosed conditions, he did not offer a rationalized
medical explanation as to how physiologically opening bags of mail would have caused the
various diagnosed conditions. Without explaining how physiologically the movements involved
in the employment incident caused or contributed to the diagnosed conditions, Dr. Krishna’s
opinion is of limited probative value.16
The Board accordingly finds that appellant has not established an injury causally related
to a March 31, 2013 employment incident. The record does not contain a rationalized medical
opinion based on a complete background. It is appellant’s burden of proof, and the Board finds
that appellant has not met her burden of proof.
On appeal counsel argues that relevant medical evidence was provided. For the reasons
discussed, the Board finds that the evidence of record is insufficient to establish the claim.

10

5 U.S.C. § 8101(2).

11

Robert H. St. Onge, 43 ECAB 1169 (1992).

12

See Connie Johns, 44 ECAB 560 (1993).

13

The physician should explain how the employment incident, and the forces and stresses of the incident, affected
the claimant and caused or aggravated a specific condition. See E.G., Docket No. 16-0242 (issued October 14,
2016)
14

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

15

See R.H., Docket No. 15-1785 (issued January 29, 2016).

16

See T.G., Docket No. 14-751 (issued October 20, 2014).

6

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 established an injury causally related to the
accepted March 31, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2017 is affirmed.
Issued: September 7, 2017
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Phoenix, AZ, Employer
)
__________________________________________ )
E.G., Appellant

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

Docket No. 16-0923
Issued: March 5, 2018

Case Submitted on the Record

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

JURISDICTION
On March 22, 2016 appellant filed a timely appeal from a September 25, 2015 merit
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 the claim.

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 September 25, 2015, the date of OWCP’s last decision was
March 23, 2016. Because using April 1, 2016, 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 March 22, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
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 October 23, 2014 employment incident.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 52-year-old supervisory deputy marshal, filed a
traumatic injury claim (Form CA-1) alleging that, on October 23, 2014, he twisted his right knee
while bowling. He indicated that bowling was part of a required training class. He did not stop
work. The employing establishment indicated on the reverse side of the claim form that
appellant was in the performance of duty at the time of the alleged incident.
In e-mail correspondence dated November 4, 2014, A.R., a supervisory deputy marshal,
indicated that the bowling exercise appellant participated in was a mandatory part of a leadership
program.
In a January 19, 2015 treatment note/work status report, Dr. P. Dean Cummings, an
orthopedic surgeon, noted an October 24, 2014 date of injury and diagnosed right knee
patellofemoral syndrome and osteoarthritis. He advised that appellant had no restrictions and
could return to full-duty work. OWCP also received physical therapy treatment records for the
period November 21, 2014 through January 7, 2015.
In January 28, 2015 claim development letters, OWCP requested additional information
from appellant and the employing establishment. It noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work and appellant’s
claim was administratively handled to allow a limited amount of medical payments. However,
his claim was being reopened as appellant’s physician had requested authorization for additional
treatment. OWCP informed appellant of the type of medical evidence needed to support his
claim and requested that he submit such evidence within 30 days.
In a January 19, 2015 follow-up narrative report, Dr. Cummings noted an October 24,
2014 date of injury. He related that appellant’s cortisone injection and physical therapy gave
him significant relief, but that appellant still experienced grinding and popping, as well as
retropatellar pain. Dr. Cummings examined him and found full range of motion, but advised that
appellant still had patellofemoral joint crepitus. He diagnosed patellofemoral chondromalacia
and recommended additional injections.
On January 27, 2015 Dr. Cummings diagnosed right knee patellofemoral syndrome and
osteoarthritis, and requested authorization for continued physical therapy. OWCP received
additional physical therapy treatment records for the period January 9 to 30, 2015.
In a February 20, 2015 statement, appellant noted that he twisted his knee while in a
leadership class that involved bowling. He denied that he sustained any other injury, either on or
off duty between the date of the injury and the date it was reported. Appellant explained that his
knee had swelling and was painful. He indicated that he used ice and elevation two to three
times a day to relieve the symptoms. In response to whether appellant had a similar disability or

2

symptoms before the injury appellant responded, “not to that part of my knee.” He confirmed
that the bowling activity was part of his leadership training and he was required to participate.
By decision dated March 12, 2015, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish causal relationship. It explained that the medical
reports from Dr. Cummings did not mention the causal relationship between the work activity
and the injury.
Thereafter, appellant submitted a February 23, 2015 report from Dr. Cummings who
diagnosed patellofemoral chondromalacia or osteoarthrosis of the patellofemoral joint.
Dr. Cummings indicated that this was clearly seen on radiographic studies performed on
November 3, 2014 with lateral and medial osteophytic changes with significant changes of the
intercondylar groove. He also found tibial spiking and medial joint space narrowing of the knee.
Dr. Cummings indicated that appellant continued to have retropatellar pain. He opined that
despite a corticosteroid injection, physical therapy, and anti-inflammatories, appellant failed to
have symptomatic relief. Dr. Cummings recommended hyaluronic acid injections.
In a March 25 2015 report, Dr. Cummings advised that he was providing causation
regarding appellant’s affected extremity. He noted that appellant related that he was attending a
leadership class on team building and that he had pain in the anterior aspect of his knee while
bowling. Dr. Cummings indicated that appellant advised that the pain was markedly different
from his previous issues. He advised that appellant had a previous right knee problem, which
was not associated with his current symptomatology. Dr. Cummings reported that appellant had
partial lateral meniscectomy in 2011 and had complete resolution of symptomatology with no
untoward side effects. He opined that appellant’s current complaints were a new issue that
occurred while bowling.
On April 6, 2015 appellant requested a review of the written record.
By decision dated September 25, 2015, OWCP’s hearing representative affirmed the
March 12, 2015 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 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.4
To determine whether 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
3

See supra note 2.

4

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

3

incident that allegedly occurred.5 The second component is whether the employment incident
caused a personal injury.6 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion
must be expressed in terms of a reasonable degree of medical certainty, and must be supported
by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).10
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.11
ANALYSIS
OWCP found that appellant established both the factual and medical components of fact
of injury. However, it denied appellant’s traumatic injury claim because the medical evidence of
record failed to adequately demonstrate how appellant’s right knee patellofemoral
chondromalacia and/or osteoarthritis was either caused or aggravated by the accepted
October 23, 2014 employment incident. The Board finds that appellant failed to meet his burden
of proof to establish his claim.
Dr. Cummings’ January 19, 2015 work status report and follow-up narrative report
incorrectly identified October 24, 2014 as the date of injury, and did not include a specific
history of injury. Moreover, he did not specifically address the particular cause of appellant’s
right knee condition(s). Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.12
Therefore, Dr. Cummings’ January 19, 2015 reports are insufficient to establish causal
relationship.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

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

8

Robert G. Morris, 48 ECAB 238 (1996).

9

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

10

Id.

11

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

12

S.E., Docket No. 08-2214 (issued May 6, 2009).

4

In his February 23, 2015 report, Dr. Cummings diagnosed patellofemoral chondromalacia
or patellofemoral joint osteoarthrosis, but again, he failed to offer an opinion on causal
relationship. This report also did not include a date of injury or a specific history of injury.
Consequently, Dr. Cummings’ February 23, 2015 report is similarly insufficient to establish
causal relationship.13
The fact that a condition manifests itself during a period of employment is not sufficient
to establish causal relationship.14 Temporal relationship alone will not suffice.15 Entitlement to
FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of a causal relationship.16
In a March 25, 2015 report, Dr. Cummings explained that he was providing an opinion on
causation regarding appellant’s affected extremity. He related that appellant was attending a
leadership class on team building and that he had pain in the anterior aspect of his knee while
bowling. Dr. Cummings indicated that appellant believed the pain was markedly different from
his previous issues. He noted that appellant had a previous right knee problem, which was not
associated with his current symptomatology. Dr. Cummings reported that appellant had a partial
lateral meniscectomy in 2011 and had complete resolution of symptomatology with no untoward
side effects. He opined that appellant’s current complaints were a new issue that occurred while
bowling. However, Dr. Cummings did not explain how he arrived at this conclusion. Appellant
claimed to have twisted his right knee while bowling, but Dr. Cummings made no mention of
this. As noted, a physician’s opinion on causal relationship must be based on a complete factual
and medical background and must be supported by medical rationale, explaining the nature of
the relationship between the diagnosed condition and appellant’s specific employment
factor(s).17 Accordingly, Dr. Cummings’ March 25, 2015 report is also insufficient 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.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a right knee
condition causally related to the accepted October 23, 2014 employment incident.

13

Id.

14

20 C.F.R. § 10.115(e).

15

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

16

See M.H., Docket No. 16-0228 (issued June 8, 2016).

17

Victor J. Woodhams, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.18
Issued: March 5, 2018
Washington, DC

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

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

18
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1402
Issued: March 28, 2022

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 21, 2020 appellant, through counsel, filed a timely appeal from a January 23, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish exposure to
tuberculosis (TB) in the performance of duty, as alleged.
FACTUAL HISTORY
On June 23, 2016 appellant, then a 50-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she was exposed to TB due to factors of her federal employment,
including working around inmates in a closed environment within a federal prison. She noted that
she first became aware of her condition and realized its relation to factors of her federal
employment on April 21, 2016. Appellant stopped work on April 21, 2016.
In a June 23, 2016 statement, appellant stated that she initially believed that she had
contracted the flu in March 2016 until she was diagnosed with TB on April 21, 2016. She
indicated that she immediately notified her union representative and the employing establishment
of her diagnosis, noting that it was work related as she was frequently around inmates and came
in direct contact with them. Appellant explained that her office was in the unit with no windows
or ventilation. She noted that inmates regularly came to her office to ask questions or to sign
forms. Appellant further noted that she also regularly checked cells, patted down inmates, and
performed all the duties of an officer. She indicated that she was previously diagnosed as a TB
carrier in early childhood, which she disclosed to the employing establishment when she was first
hired 15 years prior. Appellant asserted that she had no symptoms until March 2016.
In a July 21, 2016 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. In a separate development letter of even date, OWCP
requested that the employing establishment provide additional information regarding appellant’s
occupational disease claim, including comments from a knowledgeable su pervisor regarding the
accuracy of appellant’s statements. It afforded both parties 30 days to respond.
A May 27, 2016 chest computerized tomography (CT) scan demonstrated minor spinal
pleural thickening in the left of very limited degree with some reactive airway changes, as well as
evidence of a limited hiatal hernia.
In an August 2, 2016 work capacity evaluation (Form OWCP-5c), Dr. Sara Vizcay, Boardcertified in family practice, diagnosed TB and indicated that appellant could not work.
In an August 15, 2016 response to OWCP’s development questionnaire, appellant asserted
that she had been exposed to TB at work between 2001 and 2016. She indicated that, during her
10-hour work shifts, she had been exposed to infected inmates and that her coworkers who worked
in the same work environment had also been exposed.
Dr. Vizcay, in an August 15, 2016 Form OWCP-5c, continued to hold appellant off from
work and referred appellant to a pulmonologist.
By decision dated September 12, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her diagnosed condition was causally
related to the accepted factors of her federal employment.
2

In a March 13, 2017 medical report, Dr. Vizcay noted that appellant developed flu-like
symptoms in March 2016 and was subsequently diagnosed with TB on April 21, 2016. Appellant
reported that she was frequently around inmates at work. Dr. Vizcay indicated that appellant could
not climb up and down stairs without experiencing shortness of breath exacerbations. She also
observed that appellant experienced difficulty sleeping and had chronic pain and depression
secondary to her work injuries. Dr. Vizcay examined appellant and diagnosed exposure to TB,
positive TB skin test without active disease, restrictive airway disease, and latent TB. She noted
that appellant’s CT scan showed minor apical pleural thickening on the left lung and some reactive
airway peribronchial changes. Dr. Vizcay opined that appellant was exposed to TB at work
because the etiology of this disease is associated with being in secluded places like prisons,
homeless shelters, and/or any crowded condition like appellant’s employing establishment. She
concluded that appellant’s statements regarding appellant’s work injuries around April 21, 2016
were consistent with her medical findings.
In a June 6, 2017 medical report, Dr. Vizcay reiterated her findings and diagnoses, but
additionally diagnosed depression and anxiety secondary to chronic pain. She noted that
appellant’s pulmonary function capacity test performed that day was in the 77 th percentile.
Dr. Vizcay opined to a reasonable medical certainty that appellant was exposed to TB at work.
On September 12, 2017 appellant, through counsel, requested reconsideration. Counsel
argued that, although appellant acknowledged her latent TB, she came in contact with prisoners
with TB at the employing establishment.
By decision dated November 2, 2018, OWCP affirmed, as modified, its September 12,
2016 decision, finding that appellant had not factually established that the employment exposure
to TB had occurred, as alleged.
On November 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated January 23, 2020, OWCP denied modification of the November 2, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Supra note 2.

4

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

3

employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed. 8
ANALYSIS
The Board finds that this case is not in posture for decision.
In her June 23, 2016 statement, appellant claimed that she was exposed to TB at work, as
her work duties required her to be in direct contact with inmates in a federal prison and perform
all officer duties, including patting down inmates and regularly checking cells. In her August 15,
2016 response to OWCP’s development questionnaire, she further explained that she had been
exposed to TB at work between 2001 and 2016 during her 10-hour work shifts when she had been
exposed to infected inmates. Appellant indicated that her coworkers who worked in the same work
environment had also been exposed.
In a July 21, 2016 development letter, OWCP requested that the employing establishment
provide additional information regarding appellant’s occupational disease claim, including
comments from a knowledgeable supervisor regarding the accuracy of appellant’s statements. The
employing establishment, however, did not respond to the specific questions in its July 21, 2016
development letter.
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not respond to the request for comment made by OWCP in the July 21, 2016
development letter. 9

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

8

T.W., Docket No. 18-0788 (issued July 22, 2019); J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A.
Facey, 55 ECAB 217 (2004).
9

See S.S., Docket No. 19-1021 (issued April 21, 2021); C.K., Docket No. 20-1493 (issued March 29, 2021).

4

It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence, particularly when such evidence is of the character normally
obtained from the employing establishment or other government source. 10
This case will, accordingly, be remanded to OWCP for further development of the evidence
regarding appellant’s allegations of TB exposure at the employing establishment. OWCP shall
request that the employing establishment provide a detailed statement and relevant evidence and/or
argument regarding appellant’s allegations. Following this and any other necessary development,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 28, 2022
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

10

See M.A., Docket No. 20-1590 (issued May 12, 2021); S.S., id.; D.O., Docket No. 20-0006 (issued September 9,
2020); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Stevenson, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-623
Issued: November 13, 2008

Case Submitted on the Record

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

JURISDICTION
On December 28, 2007 appellant, through his attorney, filed a timely appeal from a
November 20, 2007 merit decision of the Office of Workers’ Compensation Programs, finding
an eight percent impairment to his right arm. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established more than eight percent impairment to his
right arm for which he received a schedule award.
FACTUAL HISTORY
On January 9, 2006 appellant, then a 54-year-old heavy equipment operator, sustained
injury to his right shoulder in the course of his federal employment. By letter dated February 14,
2006, the Office accepted his claim for right shoulder strain, right shoulder contusion and right

rotator cuff tear. On March 30, 2006 appellant underwent a right shoulder arthroscopic rotator
cuff repair and subacromial decompression.
On January 8, 2007 appellant’s physical therapist found that he had an eight percent
impairment to the right upper extremity. The physical therapist indicated that he utilized the
fourth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment. On January 15, 2007 appellant’s physical therapist performed an upper extremity
functional capacity evaluation.1 In a medical note dated January 29, 2007, Dr. Jeffrey R. Dugas,
a Board-certified orthopedic surgeon, stated that he believed appellant had reached maximum
medical improvement with regard to the recovery of his right shoulder. He agreed with the
physical therapist’s assessment that appellant had an eight percent right upper extremity
permanent impairment based on loss of range of motion.
On July 27, 2007 appellant filed a claim for a schedule award.
In a note dated January 8, 2007, received on November 13, 2007, the same physical
therapist stated that, under the criteria of the A.M.A., Guides (5th ed.), appellant has a 16 percent
impairment of the right upper extremity.
By memorandum dated November 16, 2007, the Office asked the medical adviser to
review the medical reports and determine the permanent functional loss of use of the right arm
and the date maximum medical improvement was obtained. On November 16, 2007 the Office
medical adviser indicated that appellant had arthroscopic rotator cuff repair on his right shoulder
on March 30, 2006 with loss of motion of the right shoulder. Based on the A.M.A., Guides (5th
ed.), appellant had an eight percent impairment to the right upper extremity. He did not address
the January 8, 2007 note from the physical therapist.
By decision dated November 20, 2007, the Office issued a schedule award for an eight
percent impairment of appellant’s right arm.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent 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 matter 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 (5th ed. 2001) has been adopted by the Office
for evaluating schedule losses and the Board has concurred in such adoption.3

1

The physical therapist advised that appellant had right shoulder flexion of 0 to 150, extension of 0 to 50,
abduction 0 to 110, adduction 0 to 30, internal rotation 0 to 55 and external rotation 0 to 70.
2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

2

ANALYSIS
The Board finds that appellant has an eight percent impairment to the right arm.
Appellant’s physical therapist, Mr. Weiland, obtained range of motion measurements and
determined that appellant had an eight percent impairment under the A.M.A., Guides. Dr. Dugas
agreed with this assessment and adopted the findings. Although the physical therapist utilized
the 4th edition of the A.M.A., Guides, making his rating, the physical findings can be applied to
the 5th edition of the A.M.A., Guides, as there are no differences between the editions in the
impairment assigned. The Board notes that shoulder flexion of 150 degrees equals a two percent
impairment under the A.M.A, Guides.4 Shoulder abduction to 110 degrees equals a three percent
impairment pursuant to the A.M.A., Guides.5 Shoulder adduction to 30 degrees equals a one
percent permanent impairment of the right upper extremity.6 Shoulder internal rotation to 55
degrees is two percent permanent impairment under the A.M.A., Guides.7 Shoulder external
rotation to 70 degrees is zero percent permanent impairment.8 This totals impairment of right
upper extremity due to loss of motion of eight percent.
Appellant’s attorney contends that the record establishes greater impairment, citing a
January 8, 2007 physical therapy report received by the Office on November 13, 2007.
However, there is no evidence that this note was over reviewed by and adopted by a physician.
The reports of physical therapists have no probative value on medical questions because a
physical therapist is not a physician as defined under 5 U.S.C. § 8101(2).9 Therefore, this report
does not constitute relevant medical opinion evidence. There is no probative medical evidence
to establish that appellant has greater than eight percent impairment of the right upper extremity.
CONCLUSION
The Board finds that appellant has not established more than an eight percent impairment
to his right arm.

4

Compare A.M.A., Guides (4th ed.) 43, Figure 38 with A.M.A., Guides (5th ed.) 476, Figure 16-40.

5

Compare A.M.A., Guides (4th ed.) 44, Figure 41 with A.M.A., Guides (5th ed.) 477, Figure 16-43.

6

Id.

7

Compare A.M.A., Guides (4th ed.) 45, Figure 44 with A.M.A., Guides (5th ed.) 479, Figure 16-46.

8

Id.

9

James Robinson, Jr., 53 ECAB 417 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2007 is affirmed.
Issued: November 13, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4