United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0880
Issued: December 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 12, 2020 appellant filed a timely appeal from an October 25, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish cervical conditions
causally related to the accepted February 12, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On February 22, 2019 appellant, then a 28-year-old sales and service distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on February 12, 2019 he strained his upper
back while in the performance of duty. He stopped work that day. In a February 12, 2019
statement, appellant recounted that, while in parcel post, he was picking up a package and suddenly
felt sharp pain and significant discomfort in his back. He indicated that when the pain continued
after a break, he left his work assignment early and sought medical treatment from health
professionals.
In a February 15, 2019 work status note, Benjamin Anderson, a certified physician
assistant, reported a diagnosis of strain of the cervical spine ligaments. He opined that appellant
was unable to work from February 12 to March 18, 2019.
In a March 19, 2019 development letter, OWCP informed appellant that, when his claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and; therefore, payment of a limited amount of medical expenses was administratively
approved without formal consideration of the merits of his claim. It, however, reopened his claim
for consideration of the merits because he had not yet returned to full-time work, and that his claim
would now be formally adjudicated. OWCP advised appellant of the deficiencies of his claim,
requested additional factual and medical evidence, and provided a questionnaire for his
completion. It afforded him 30 days to respond.
In a March 20, 2019 duty status form report (Form CA-17), an unknown provider with an
illegible signature noted clinical findings of neck and upper back pain and limited range of motion.
Appellant was advised to not work.
By decision dated May 29, 2019, OWCP accepted that the February 12, 2019 employment
incident occurred, as alleged, but denied appellant’s traumatic injury claim because the evidence
of record did not include medical evidence containing a diagnosis in connection with the accepted
employment incident.
On August 12, 2019 appellant requested a review of the written record by a representative
from OWCP’s Branch of Hearings and Review.
OWCP received a February 15, 2019 report from Dr. Theodore J. Fisher, a Board-certified
orthopedic surgeon. Dr. Fisher recounted that on February 12, 2019 appellant was working as a
clerk for the employing establishment when he leaned forward to lift a package and experienced
sharp pain in the posterior area of his neck radiating into his right shoulder blade. Upon
examination of appellant’s cervical spine, he observed tenderness over the C5 through C7 cervical
paraspinous muscles and over the bilateral upper trapezius and right medial scapular border.
Spurling’s and Lhermitte’s maneuver revealed increased neck pain. Dr. Fisher reported that
sensory examination of the bilateral upper extremities was within normal limits. He also indicated
that x-ray films taken that day revealed mild collapse of disc height at the C5-6 cervical disc level
and mildly reversed lordosis. Dr. Fisher diagnosed strain of the cervical spine. He advised that
appellant remained off work.

2

In progress notes dated March 20 and April 24, 2019, Dr. Fisher indicated that appellant
was seen for reevaluation of his neck pain and noted that his pain had improved, but he still
complained of difficulty looking down. He provided examination findings and diagnosed strain
of the ligaments of the cervical spine and thoracic back pain. In the April 24, 2019 note, Dr. Fisher
indicated that appellant could return to modified-duty work on April 29, 2019.
Appellant also provided physical therapy treatment records dated February 18 through
March 11, 2019.
By decision dated August 29, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record. It determined that the request was untimely
filed as it was postmarked on August 12, 2019, more than 30 days after its May 29, 2019 decision.
After exercising its discretion, OWCP further found that the issue in the case could equally well
be addressed through the reconsideration process.
On September 17, 2019 appellant requested reconsideration of the May 29, 2019 decision
and resubmitted Dr. Fisher’s February 15, March 20, and April 24, 2019 progress notes.
By decision dated October 25, 2019, OWCP modified the August 29, 2019 decision and
found that the medical evidence of record was sufficient to establish diagnosed cervical conditions.
However, it denied appellant’s claim, finding insufficient medical evidence to establish that
appellant’s conditions were causally related to the accepted February 12, 2019 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.7
3

Supra note 1.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

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

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

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There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.8 Second, the employee must submit evidence, in the form
of probative medical evidence, to establish that the employment incident caused a personal injury.9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.11 The weight of the 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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish cervical
conditions causally related to the accepted February 12, 2019 employment incident.
In his reports of February 15, March 20, and April 24, 2019, Dr. Fisher described the
February 12, 2019 history of injury and provided examination findings. He diagnosed strain of
the ligaments of the cervical spine and thoracic back pain. Dr. Fisher did not, however, offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.13 As such, the Board finds that these reports are insufficient to
establish appellant’s claim.

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
10

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
12

James Mack, 43 ECAB 321 (1991).

13

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

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Appellant also received treatment from Mr. Anderson, a certified physician assistant.
Mr. Anderson’s February 15, 2019 work status note is of no probative value because physician
assistants are not considered physicians as defined under FECA.14
Additionally, OWCP received a Form CA-17, dated March 20, 2019, from an unknown
provider. The Board has previously held, however, that reports that are unsigned or that bear
illegible signatures cannot be considered as probative medical evidence because they lack proper
identification.15 This report, therefore, is insufficient to establish appellant’s claim.
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed cervical conditions and the
accepted February 12, 2019 employment incident, the Board finds that appellant has not met his
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish cervical
conditions causally related to the accepted February 12, 2019 employment incident.

14

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20
C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician assistant are not considered physicians under
FECA).
15
G.N., Docket No. 19-0184 (issued May 29, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 10-583
Issued: November 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 30, 2009 appellant, through her attorney, filed a timely appeal from the
November 3, 2009 merit decision of the Office of Workers’ Compensation Programs denying her
claims for recurrence of disability and surgery authorization. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her
December 22, 2008 lumbar surgery was necessitated by residuals of her accepted work injuries
sustained in 1999; and (2) whether she met her burden of proof to establish that she sustained a
recurrence of total disability for the periods November 22 to 23, 2008 and December 2
to 30, 2008 due to her accepted work injuries sustained in 1999.
FACTUAL HISTORY
On November 6, 1999 appellant, then a 40-year-old clerk, filed an occupational disease
claim alleging that she sustained back and neck problems due to performing her work duties,

including putting mail in sacks and pulling sacks weighing up to 100 pounds.1 The Office
accepted that she sustained pelvic and thigh joint pain, aggravation of lumbosacral spondylosis
without myelopathy, aggravation of lumbar disc displacement without myelopathy, lumbar
sprain, lumbago, chest pain, aggravation of a herniated C6-7 disc and cervical sprain. Appellant
began working in a limited-duty position in October 1999 and she received compensation from
the Office for periods of disability. She was restricted from lifting more than 40 pounds as
tolerated and from engaging in repetitive bending and twisting.
On September 27, 2000 Dr. Peter Wirtz, a Board-certified orthopedic surgeon serving as
an Office referral physician, determined that the aggravation of appellant’s underlying spinal
conditions caused by her work in 1999 did not cause any permanent functional limitation as this
aggravation was temporary in nature.
Appellant’s limited-job duties changed over time and on February 14, 2008,
Dr. Dawn M. Schissel, an attending Board-certified family practitioner, reduced her work
limitations to six hours of sitting a day, one to two hours of walking or standing, four hours of
reaching with no twisting or reaching above shoulder height and one hour of bending or
stooping. She also restricted appellant from lifting, pushing or pulling more than 10 pounds,
kneeling or climbing stairs for more than two hours a day or engaging in any squatting. These
restrictions were put in place after appellant fractured her left fibula at the ankle in
December 2007 due to a nonwork-related fall.
Dr. Don Crank, an attending podiatrist, treated appellant for her left ankle fracture until
May 31, 2008. Appellant used a walking boot and crutches for a period and reported that she
had increased neck and back pain after the fall. The employing establishment sent her a written
job offer on June 27, 2008 after Dr. Crank released her from his care.
On July 6, 2008 appellant presented to the Iowa Methodist Medical Center emergency
room with an acute exacerbation of her low back pain that had been present for two days.
Although the records noted that she “denied injury” another portion of the records showed that
she indicated that she “fell in December.”
On November 13, 2008 Dr. William R. Boulden, an attending Board-certified orthopedic
surgeon, indicated that he disagreed with the radiologist physician who evaluated magnetic
resonance imaging (MRI) scan test results of her lumbar spine which were obtained on
September 12, 2008. Dr. Boulden stated that the test results showed mild lateral recess stenosis
at L4-5 and a central-to-left disc herniation at L5-S1 affecting the S1 nerve root whereas the
radiologist physician only saw central bulging at L4-5 and L5-S1 bilaterally which contacted, but
did not displace the nerve roots. He recommended that appellant undergo surgery at L4-5 and
L5-S1.
Appellant requested authorization from the Office for lumbar surgery. On December 22,
2008 Dr. Boulden performed a bilateral decompression laminectomy at L4-5 and partial
discectomy at L5-Sl on the left.

1

Appellant indicated that she first became aware of her claimed condition on October 19, 1999.

2

In a January 23, 2009 letter, the Office requested that appellant submit additional
evidence in support of her claim.
In a January 29, 2009 report, Dr. Boulden described appellant’s recovery from the
December 22, 2008 surgery. He indicated that she was disabled from December 22, 2008 to
January 3, 2009 due to the surgery and the resultant pain and need for pain medication.
Appellant could perform limited-duty work after January 3, 2009.
The Office asked Dr. Boulden to indicate whether appellant’s December 22, 2008 surgery
was necessitated by her accepted work injuries. On February 19, 2009 Dr. Boulden stated:
“In reference to number seven, as to the causal relationship between the current
condition and the original injury, the patient has had a claim accepted for lumbar
disc displacement. She underwent surgery for sciatica pain, and that has been
successful.
“At this point in time, the patient is recovering nicely from the sciatica pain.
[Appellant] still has residual back pain. She continues to work on exercises and
rehabilitation. [Appellant] is to return to work on a restricted basis.
“Finally, I do not feel there were any precipitating factors capable of causing the
condition by itself, because this has been accepted as a clinical diagnosis and
covered by the United States Postal Service.”
On March 10, 2009 Dr. Daniel Zimmerman, a Board-certified internist serving as an
Office medical adviser, indicated that treatment and testing in 2002 revealed right greater than
left side symptoms of the lumbar spine. He noted that later examination and diagnostic testing
records showed greater symptoms on the left. Dr. Zimmerman pointed out that, without other
intervening incidents, radicular pain rarely changed from one side to the other. He concluded
that appellant’s December 22, 2008 surgery was not necessitated by employment factors.
In late 2008 and early 2009, appellant filed claim forms alleging that she sustained a
recurrence of total disability for the periods November 22 to 23, 2008 and December 2 to
December 30, 2008. On July 11, 2008 she filed a claim for a schedule award. In a
November 20, 2008 decision, the Office denied appellant’s claim for schedule award
compensation.
In a May 6, 2009 decision, the Office denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a recurrence of total
disability for periods between November 22 and December 30, 2008. It also found that appellant
had not shown that her December 22, 2008 lumbar surgery was necessitated by residuals of her
accepted work injuries sustained in 1999.
Appellant requested a telephonic hearing with an Office hearing representative. During
the August 10, 2009 hearing, she testified that she was unsure about what treatment, if any, she
received on November 22 and 23, 2008, but she noted that she had a flare-up of back pain around
that time. Appellant stated that her physician took her off work for half days beginning on
December 2, 2008 until her surgery on December 22, 2008 and noted that she was off work for
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about two weeks after the surgery. She noted her belief that her current medical condition is
related to her 1999 work injury because her condition had progressively worsened since that
time. Appellant testified that she did have a nonwork injury due to a fall on December 26, 2007
and suffered a fractured left fibula. She noted that she used crutches and wore a boot, which
aggravated her back pain after the fall. Counsel indicated that it was unclear whether the Office
accepted that appellant sustained a herniated lumbar disc and posited that a reasoned
determination on her disability and surgery claims could not be made until this matter was
clarified.
In a November 3, 2009 decision, the Office hearing representative affirmed the Office’s
May 6, 2009 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act states in pertinent part:
“The United States shall furnish to an employee who is injured while in the performance of duty,
the services, appliances, and supplies prescribed or recommended by a qualified physician, which
the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly compensation.”2 In order to be entitled to
reimbursement of medical expenses, appellant has the burden of establishing that the expenditures
were incurred for treatment of the effects of an employment-related injury or condition.3 Proof of
causal relationship in a case such as this must include supporting rationalized medical evidence.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained pelvic and thigh joint pain, aggravation of
lumbosacral spondylosis without myelopathy, aggravation of lumbar disc displacement without
myelopathy, lumbar sprain, lumbago, chest pain, aggravation of a herniated C6-7 disc and
cervical sprain. These conditions were caused by work duties performed in 1999, including
putting mail in sacks and pulling sacks weighing up to 100 pounds. In late 2008, appellant
requested authorization for lumbar surgery to be performed by Dr. Boulden, a Board-certified
orthopedic surgeon. On December 22, 2008 Dr. Boulden performed a bilateral decompression
laminectomy at L4-5 and partial discectomy at L5-Sl on the left. The Office denied appellant’s
claim indicating that she had not shown that the December 22, 2008 surgery was necessitated by
residuals of the accepted work injuries sustained in 1999.
The Board finds that appellant did not submit sufficient medical evidence to establish that
her December 22, 2008 lumbar surgery was necessitated by residuals of her accepted work
injuries sustained in 1999.

2

5 U.S.C. § 8103.

3

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

4

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

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The Office had asked Dr. Boulden to indicate whether appellant’s December 22, 2008
surgery was necessitated by her accepted work injuries. On February 19, 2009 Dr. Boulden
stated that “as to the causal relationship between the current condition and the original injury,
appellant has had a claim accepted for lumbar disc displacement. Appellant underwent surgery
for sciatica pain, and that has been successful.” Dr. Boulden has not, however, provided a clear,
rationalized decision that appellant’s accepted 1999 work injuries contributed to the need for
lumbar surgery about nine years later in 2008.
Dr. Boulden did not describe appellant’s accepted work injuries or explain how they
could have contributed to her need for surgery at such a later date. Appellant had preexisting
degenerative disc condition prior to sustaining her work injuries in 1999 and Dr. Boulden did not
explain why her continuing back problems and need for surgery were not due to the natural
progression of her underyling condition. When Dr. Boulden recommended surgery, he indicated
that appellant had a mild lateral recess stenosis at L4-5 and a central-to-left disc herniation at L5S1 affecting the S1 nerve root. However, appellant’s claim was only accepted for the lesser
conditions of aggravation of lumbosacral spondylosis without myelopathy and aggravation of
lumbar disc displacement without myelopathy. Appellant sustained a left ankle fracture due to a
nonwork-related fall in December 2007 and reported increased back symptoms after that point.
Dr. Boulden did not provide any assessment of this condition or evaluate the extent that it might
have contributed to the need for surgery on December 22, 2008.5
For these reasons, appellant did not submit sufficient evidence to show that her
December 22, 2008 lumbar surgery was necessitated by a work-related condition and the Office
properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.6

5

Moreover, the record contains evidence showing that appellant’s December 22, 2008 lumbar surgery was not
necessitated by work-related residuals. On March 10, 2009 Dr. Zimmerman, a Board-certified internist serving as
an Office medical adviser, concluded that appellant’s December 22, 2008 surgery was not necessitated by work
factors. He noted that treatment and testing in 2002 revealed right greater than left side symptoms of the lumbar
spine. Later examination and diagnostic testing records showed greater symptoms on the left and Dr. Zimmerman
pointed out that, without other intervening incidents, radicular pain rarely changed from one side to the other.
6

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

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ANALYSIS -- ISSUE 2
Appellant had returned to light-duty work after she sustained her injuries in 1999 and she
claimed that she sustained a recurrence of total disability for the periods November 22 to 23,
2008 and December 2 to 30, 2008 due to these injuries. The Board finds that appellant did not
submit sufficient medical evidence to establish that she had work-related disability for these
periods.
In a January 29, 2009 report, Dr. Boulden indicated that appellant was disabled from
December 22, 2008 to January 3, 2009 due to the December 22, 2008 surgery and the resultant
pain and need for pain medication. However, for the reasons explained above, appellant has not
established that her December 22, 2008 surgery was necessitated by residuals of her accepted
work injuries sustained in 1999. Dr. Boulden did not advance any other reason he felt that
appellant was disabled from December 22, 2008 onwards. Appellant did not present any other
medical evidence addressing her claim that she sustained a recurrence of total disability for the
periods November 22 to 23, 2008 and December 2 to 30, 2008. Months prior to the surgery,
Dr. Schissel, an attending Board-certified family practitioner, had increased appellant’s work
restrictions. However, she did not provide any indication that the restrictions were changed due
to residuals of a work injury.
Appellant has not submitted rationalized medical evidence showing that she sustained a
recurrence of total disability for the claimed periods and the Office properly denied her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
December 22, 2008 lumbar surgery was necessitated by residuals of her accepted work injuries
sustained in 1999. The Board further finds that she did not meet her burden of proof to establish
that she sustained a recurrence of total disability for the periods November 22 to 23, 2008 and
December 2 to 30, 2008 due to her accepted work injuries sustained in 1999.

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ORDER
IT IS HEREBY ORDERED THAT the November 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTH TEXAS HEALTHCARE SYSTEM-AUDIE MURPHY, San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-111
Issued: April 28, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2007 appellant filed a timely appeal from the October 2, 2007 decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on April 12, 2007 as alleged.

1

The Board notes that the Office issued an amended decision on October 23, 2007, after appellant had filed an
appeal with this body. Because jurisdiction over the issues in the October 2, 2007 decision was transferred to the
Board at the time of the appeal, the October 23, 2007 decision, which addresses the same issues, is null and void.
See Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 10.625 (While a case is on appeal to the
[Board], [the Office] has no jurisdiction over the claim with respect to the issue or issues on appeal.)

FACTUAL HISTORY
On April 13, 2007 appellant, then a 53-year-old housekeeping aid, filed a traumatic injury
claim, Form CA-1, alleging that he felt a sharp pain in his liver or kidney area caused by a laser,
taser, or “high powered x-ray,” while folding linen on April 12, 2007. The employing
establishment controverted the claim, stating that the injury was questionable and
psychosomatic. It noted that appellant had been diagnosed with paranoia.
On April 13, 2007 Carlos Hernandez, appellant’s supervisor, stated that appellant notified
him that he was sitting in the laundry room folding linen the previous day when he felt a sharp
pain in the left side of his body somewhere between his liver and kidneys. Appellant stated that
the pain was caused by a laser or taser penetrating his body.
On April 13, 2007 Geneveva Contreras, an employee health nurse, reported that appellant
experienced a sharp or sudden pain in his left flank area the previous day that felt like he was
probed or shocked. She noted that he had no remaining pain. Arlis Harmann, a physician’s
assistant at the employee health clinic, stated that appellant reported that a coworker attacked his
internal organs from the back with a ray gun. He noted paranoid ideation and mental
impairment, but offered no diagnosis related to the alleged injury. Mr. Harmann released
appellant to work the same day. On April 18, 2007 Dr. James Moore, a Board-certified internist
at the employee health clinic, reviewed Mr. Harmann’s report. He stated that appellant had a
history of “odd behavior” and, based on previous evaluations, recommended that appellant be
referred for a psychiatric evaluation.
On May 10, 2007 the Office requested additional medical evidence related to the claimed
injury.
By decision dated June 8, 2007, the Office denied appellant’s claim. The Office accepted
that the employment incident occurred as alleged, but found that the medical evidence did not
establish a diagnosis connected with the event.
On August 7, 2007 appellant requested reconsideration. He alleged that the shock he
received on April 12, 2007 resulted in a clot near his kidney that was causing blood in his urine.
On a July 12, 2007 form, Dr. Hassan Jafary, a Board-certified internist, indicated that appellant
had been diagnosed with left-side pain, thoracic muscle spasms, hyperlipidemia, left shoulder
pain, cervical radiculopathy, low back pain and hematuria. He stated that appellant had been
diagnosed and treated with ultrasound, computerized tomography (CT) scans and medication.
On August 24, 2007 Dr. Jafary stated that appellant had a history of low back pain, electrical
shock, renal pain, difficulty urinating and hematuria. He diagnosed low back pain and hematuria
and, by checking a box, indicated that these conditions were caused or aggravated by appellant’s
employment. Appellant also provided disability certificates removing him from work on
April 30, May 11 and 30 to September 20, 2007. None of the certificates stated the cause of
appellant’s disability from work.
By decision dated October 2, 2007, the Office modified its June 8, 2007 decision to
accept that appellant had established the diagnosis of hematuria. However, it denied appellant’s

2

claim on the grounds that he had not provided rationalized medical evidence supporting a causal
relationship between this diagnosed condition and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury, and, generally, this can be established only by
medical evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant,6 and must be one of reasonable medical certainty,7 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.
ANALYSIS
The Office has accepted that appellant sustained a shock on April 12, 2007 and that he
was diagnosed with hematuria. The issue is whether appellant has established a causal
relationship between the employment incident and the diagnosed condition. As discussed above,
this issue must be resolved with rationalized medical evidence.
On July 12, 2007 Dr. Jafary, a Board-certified internist, stated that appellant had been
diagnosed with thoracic muscle spasms, hyperlipidemia, cervical radiculopathy, hematuria, and
pain in his left side, left shoulder and low back. He gave no opinion as to the cause of any of
2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Ellen L. Noble, 55 ECAB 530 (2004).

5

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

6

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

John W. Montoya, 54 ECAB 306 (2003).

3

these conditions. On August 24, 2007 Dr. Jafary stated that appellant had a history of low back
pain, electrical shock, renal pain, difficulty urinating and hematuria. He diagnosed low back
pain and hematuria. By check mark, Dr. Jafary indicated that these conditions were caused or
aggravated by appellant’s employment. The Board finds that the opinion of Dr. Jafary carries
little weight because it provided no medical explanation of how the employment event caused or
aggravated the diagnosed hematuria.8 It is well established that a physician’s opinion on causal
relationship that consists merely of checking “yes” to a form question, without more in the way
of medical rationale, is of diminished probative value.9 Because Dr. Jafary did not offer a
rationalized medical opinion on the cause of appellant’s hematuria, the Board finds that his
reports are insufficient to establish appellant’s claim.
The Board finds that the remainder of the medical evidence in the record also fails to
establish appellant’s claim. The April 2007 medical reports from the employing establishment’s
clinic, only one of which was prepared by a physician,10 made no diagnosis of hematuria or any
other condition connected to the accepted employment events. Likewise, the disability slips
appellant submitted contained neither a diagnosis nor an explanation of the cause of his
disability.
Because appellant has not submitted adequate medical evidence, the Board finds that he
has not met his burden of proof to establish a causal relationship between his accepted
employment event and his diagnosed hematuria.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on April 12, 2007 as alleged.

8

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
9

Cecelia M. Corley, 56 ECAB 662 (2004).

10

A medical report may not be considered probative medical evidence unless it can be established that the person
completing the report is a “physician” as defined in the Act. Thomas L. Agee, 56 ECAB 465 (2005). 5 U.S.C.
§ 8101(2) defines the term “physician” to include surgeons, podiatrists, dentist, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by state law. Paul Foster, 56
ECAB 208 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation dated October 2, 2007 is affirmed.
Issued: April 28, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1682
Issued: February 1, 2017

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 August 15, 2016 appellant, through counsel, filed a timely appeal from a June 7, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration as the request was untimely filed and failed to demonstrate clear
evidence of error. The Clerk of the Board docketed the appeal as No. 16-1682.
The Board notes that in a March 17, 2015 decision, OWCP denied appellant’s traumatic
injury claim because the medical evidence was insufficient to establish a medical condition
causally related to the accepted work event. By decision dated July 8, 2015, OWCP denied
appellant’s March 23, 2015 reconsideration request without conducting a merit review of the
claim. In a March 16, 2016 letter, counsel requested reconsideration of the March 17 and July 8,
2015 decisions and submitted medical evidence. In a June 7, 2016 decision, OWCP denied
appellant’s request for reconsideration because it was untimely filed and failed to demonstrate
clear evidence of error.

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.

The Board has duly considered the matter and finds that the March 16, 2016 request
constituted a timely request for reconsideration. OWCP regulations at 20 C.F.R. § 10.607(a),
provide that an “application for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.” Its procedures establish that a one-year time
limit for requesting reconsideration, which begins on the next day after the date of the original
contested OWCP decision.2 In this case, OWCP issued its last merit decision denying
appellant’s traumatic injury claim on March 17, 2015. Appellant had one year from the date of
this decision to make a timely request for reconsideration. Her request for reconsideration was
received by OWCP on March 16, 2016, within the required one-year time period. As appellant’s
request for reconsideration was received on March 16, 2016, the Board finds that it was timely
filed.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request.3 The clear evidence of error standard utilized
by OWCP in its June 7, 2016 decision is appropriate only for untimely reconsideration requests.4
The Board will set aside OWCP’s June 7, 2016 decision and remand the case for an appropriate
final decision on appellant’s timely request for reconsideration.
IT IS HEREBY ORDERED THAT the June 7, 2016 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
order of the Board.

2

Federal (FECA) Procedure Manual, Part 2 -- Appeals, Reconsideration, Chapter 2.1602.4 (February 2016); see
Veletta C. Coleman, 48 ECAB 367 (1997).
3

See 20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(b).

2

Issued: February 1, 2017
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 11-1641
Issued: March 15, 2012

Case Submitted on the Record

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

JURISDICTION
On July 6, 2011 appellant, through her attorney, filed a timely appeal from a May 24,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant’s wage-earning capacity
based on actual earnings as a telephone operator.
FACTUAL HISTORY
On April 15, 2008 appellant, then a 44-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging injury to her neck and upper extremities on December 23,
1

5 U.S.C. § 8101 et seq.

2006 when she indicated that she fell out of bed.2 In a narrative statement, she discussed her job
duties, including repetitive activities with emptying drawers and sorting pills. In a memorandum
dated May 28, 2008, OWCP indicated that, although a CA-1 form was filed, it was evident that
her claim was for occupational exposure from incidents over more than one workday. Therefore,
the claim would be adjudicated as such.
OWCP accepted the claim for sprains of the neck, right elbow and forearm, medial
epicondylitis, right radial styloid tenosynovitis and a herniated disc at C5-6. On December 10,
2007 appellant underwent a cervical discectomy. She returned to work in a modified position on
December 8, 2008. The record indicates that appellant underwent right carpal tunnel release
surgery on February 27, 2009.
Appellant was referred for a second opinion examination to Dr. Christopher Jordan, an
orthopedic surgeon. In a report dated June 27, 2009, Dr. Jordan provided a history and results on
examination. He found that appellant could work with restrictions and completed an OWCP-5c
report (work capacity evaluation). In a report dated July 23, 2009, the attending physician
Dr. J. Arden Blough, a family practitioner, opined that she was totally disabled.
To resolve a conflict in the medical evidence, appellant was referred to Dr. C.L. Soo, a
Board-certified orthopedic surgeon. In a report dated October 5, 2009, Dr. Soo reviewed a
history of injury and results on examination. He stated that appellant could work full time with
restrictions. In an OWCP-5c (work capacity evaluation) dated October 30, 2009, Dr. Soo
indicated that she was restricted to six hours of such activity as sitting, walking, standing and
reaching. He reported that appellant had a 10-pound lifting restriction.
By letter dated December 17, 2009, the employing establishment noted the work
restrictions provided by Dr. Soo and offered appellant a position as a Police Service, Telephone
Operator with annual wages of $35,753.00 ($687.55 per week). According to the employer, the
date of injury was December 23, 2006 and she was at that time a General Services (GS) 5, Step 6
employee at $33,075.00 per year. The employing establishment described the job duties and
physical requirements.
In a report dated December 29, 2009, Dr. M. Stephen Wilson, an orthopedic surgeon,
stated that he had reviewed the job offer. He noted that appellant had performed this job in the
past, but when she did perform the job her condition had worsened due to the volume of
telephone calls answered and the writing requirement. Dr. Wilson advised that the offered
position was not suitable.
By letter dated January 15, 2010, OWCP asked the employer for information regarding
pay rate, including the pay rate for the date of injury on December 23, 2006. It responded that on
December 23, 2006 appellant was a GS-5, Step 5 with annual earnings of $32,130.00 and the

2

In a letter dated April 15, 2008, the employing establishment stated that December 23, 2006 was a Saturday and
appellant was off work.

2

current annual earnings of a GS-5, Step 5 was $35,489.00. According to the employing
establishment, her current earnings in the offered position would be $36,384.00.
After initially rejecting the offered position as a telephone operator, the record indicates
that appellant accepted the position on March 2, 2010. In an OWCP-5c dated July 19, 2010,
Dr. Wilson advised that she was limited to six hours a day sitting, standing and walking, four
hours of reaching and repetitive wrist and elbow movements, with two hours reaching above
shoulder. He also limited appellant to a maximum of 10 pounds, pulling and pushing.
Dr. Wilson stated that she should not work alone and should have two consecutive days off to
rest.
In a decision dated October 22, 2010, OWCP found that appellant’s actual earnings as a
telephone operator fairly and reasonably represented her wage-earning capacity. It found that
she had current earnings of $708.53 per week, which were greater that the current pay rate for a
GS-5 Step 5 employee of $682.48 per week. OWCP concluded that appellant had no loss of
wage-earning capacity.
Appellant requested a telephonic hearing, which was held on March 15, 2011. At the
hearing, she stated that the job she was working was a GS-4, Step 10 position and at times, she
had to work midnight to 8:00 a.m. which was against her physician’s orders. Appellant’s
representative argued that the job was a makeshift job.
In a letter dated April 8, 2011, the employing establishment stated that the position of
telephone operator was a classified position and was not a makeshift position. The employing
establishment submitted a copy of the position description.
By decision dated May 24, 2011, an OWCP hearing representative affirmed the
October 22, 2010 OWCP decision. With respect to appellant’s current earnings, the hearing
representative indicated that the $708.53 per week earnings included overtime and holiday pay.
LEGAL PRECEDENT
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity.3 Generally, wages actually earned are the best measure of a wage-earning capacity
and, in the absence of evidence showing that they do not fairly and reasonably represent the
injured employee’s wage-earning capacity, must be accepted as such measure.4
OWCP’s procedures state that, after a claimant has been working for 60 days, OWCP
will make a determination as to whether actual earnings fairly and reasonably represent wage-

3

5 U.S.C. § 8115(a).

4

Dennis E. Maddy, 47 ECAB 259 (1995).

3

earning capacity.5 OWCP’s procedure manual provides guidelines for determining wage-earning
capacity based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonable represents his or her WEC, the [c]laims examiner [(CE)] should
consider whether the kind of appointment and tour of duty (see FECA PM 2900.3) are at least equivalent to those of the job held on date of injury. Unless
they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:
“(1) The job is part-time (unless the claimant was apart-time worker at the
time of injury) or sporadic in nature;
“(2) The job is seasonal in an area where year-round employment is
available.
“(3) The job is temporary where the claimant’s previous job was
permanent.”6
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,7 has been codified at 20 C.F.R. § 10.403. OWCP
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury position.8
ANALYSIS
In the present case, the record indicates that appellant began working as a telephone
operator on or about March 2, 2010. There is no evidence that the offered position was a parttime, temporary or seasonal position. Appellant has argued that the position was a makeshift
position that is not appropriate for a wage-earning capacity determination.9 The Board has found
that question of whether a position is makeshift involves consideration of such factors as whether
the position had an official title or formal position description, whether there were such strict
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1995).
6

Federal (FECA) Procedure Manual, supra note 5, Chapter 2.814.7(a) (July 1997).

7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403(d).

9

A makeshift position is one specifically tailored to an employee’s particular needs and generally lacks a position
description, physical requirements and work schedule. William D. Emory, 47 ECAB 365 (1996).

4

limitations that it would indicate that the claimant would not be able to secure a position in the
community at large, whether the claimant performed meaningful tasks in the position and
whether the job appeared to be temporary in nature.10 In this case, the position offered did have
a title and job description, with defined and meaningful duties and no indication that the job was
temporary. At the telephonic hearing appellant appeared to argue that her job duties differed
from the job description, but she did not describe her job duties or support an argument that the
job was makeshift in nature.
With respect to the medical evidence and the job duties as a telephone operator, the
Board notes that Dr. Wilson’s statement in a December 29, 2009 report that the job was not
suitable appeared to be based on a concern that the job might cause an aggravation of appellant’s
condition in the future.11 Moreover, there had been a conflict in the medical evidence12
regarding her disability and work restrictions and the referee physician, Dr. Soo, had provided
work restrictions. As a referee physician resolving a conflict, his complete report and opinion as
to work restrictions is entitled to special weight.13 The job offer was based on the restrictions
from Dr. Soo and there is no evidence that the job duties were outside the work restrictions
provided by the referee physician.
Appellant also stated that after she began work she had to work some nights and this was
against her physician’s orders. She did not provide a detailed discussion of her work schedule.
The restrictions provided by Dr. Wilson in the July 19, 2010 OWCP-5c did not discuss any
restriction on working at night. Dr. Wilson indicated in a March 17, 2010 report that appellant
should have eight hours in between her work shifts, but there was no probative evidence that the
job was outside established work restrictions .
The Board accordingly finds that OWCP properly found that earnings in the position of
telephone operator fairly and reasonably represented her wage-earning capacity. Appellant
worked in the position for more than 60 days and it was not a makeshift, part-time, temporary or
seasonal position.
As to the calculation of appellant’s wage-earning capacity, however, the record requires
further development. OWCP found that her current earnings were $708.53 per week, which
included overtime work performed. It is well established that overtime pay is not included in
computing an employee’s pay.14 In addition, OWCP found that the date of injury in this case
was December 23, 2006. The comparison between current earnings and current pay rate for the
date-of-injury position, as required by 20 C.F.R. § 10.403, was therefore based on the underlying
10

See A.J., Docket No. 10-619 (issued June 29, 2010).

11

This type of prophylactic restriction is not a basis for compensation under FECA. See L.T., Docket No. 102031 (issued August 1, 2011); Mary Geary, 43 ECAB 3000 (1991).
12

FECA 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 the
examination. 5 U.S.C. § 8123(a).
13

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

14

5 U.S.C. § 8114(e) specifically provides that overtime pay is not included in determining a claimant’s pay rate.

5

date-of-injury pay rate as of December 23, 2006. But the December 23, 2006 date was based on
information on appellant’s CA-1 traumatic injury claim form. The claim was developed as an
occupational disease or illness claim for incidents occurring over more than one workday. For
an occupational claim, the date of injury is the date of last exposure to the identified factors
causing the injury.15 OWCP did not make a proper finding as to the date of injury in this case.
Once the date of injury is properly determined, OWCP can determine the current pay rate for the
date-of-injury position.
The case will accordingly be remanded to OWCP for proper findings as to pay rate and
proper calculation of appellant’s loss of wage-earning capacity. After such further development
as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the actual earnings as a telephone operator were appropriate for a
wage-earning capacity determination, but OWCP did not properly calculate the loss of wageearning capacity and the case is remanded for further development.

15

Barbara A. Dunnavant, 48 ECAB 517 (1997).

6

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: March 15, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 13-762
Issued: April 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 13, 2013 appellant, through her attorney, filed a timely appeal from the
January 31, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 20, 2004 appellant, then a 57-year-old secretary, filed an occupational
disease claim alleging that she spent the morning of January 14, 2004 processing travel
documents that required extensive preparation which caused strain and tension to the wrists and
hands. On March 26, 2004 OWCP accepted her claim for right shoulder bursitis, right
epicondylitis and bilateral carpal tunnel syndrome and she received compensation benefits.
Appellant underwent a right carpal tunnel release on May 25, 2004 and left carpal tunnel release
on November 9, 2004. She lost intermittent periods from work. On April 20, 2006 appellant
returned to work as an administrative support clerk with restrictions.
On July 24, 2006 OWCP issued a decision terminating appellant’s wage-loss
compensation and medical benefits. It found that she no longer had any residuals from the
accepted conditions. By decision dated January 9, 2007, an OWCP hearing representative
affirmed the termination of benefits. On July 25, 2006 appellant’s attorney informed OWCP that
appellant had retired from federal employment effective June 30, 2006.
On November 23, 2006 appellant, through counsel, requested a schedule award. She
submitted a November 6, 2006 report from Dr. Timothy Morley, an osteopath, who indicated
that appellant had a 13 percent permanent impairment to her upper extremity pursuant to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2001) (A.M.A., Guides). Dr. Morley provided physical examination findings with
regard to range of motion of the right shoulder and commented on sensory loss in both of
appellant’s wrists due to carpal tunnel syndrome.
On July 3, 2007 OWCP referred the case to Dr. Nabil F. Angley, a Board-certified
orthopedic surgeon and medical adviser. In a July 19, 2007 report, Dr. Angley determined that
appellant had a 15 percent impairment of her right upper extremity pursuant to the fifth edition of
the A.M.A., Guides. By memorandum to Dr. Angley, OWCP inquired as to why appellant had
impairment especially after it determined that appellant no longer had any residuals of her
accepted employment injury. In an April 9, 2008 report, he indicated that upon further review of
the file and the medical opinions therein, appellant had no permanent impairment. Dr. Angley
noted that Dr. Morley reported residual restrictions in the range of motion in her right shoulder
that was not reported by other physicians and noted that there was full range of motion in both
elbows. He further noted that Dr. Morley did not specify which upper extremity was affected by
sensory loss which rendered his rating as unacceptable. Dr. Angley concluded that his prior
evaluation was based on Dr. Morley’s evaluation and thus may be inaccurate and that the final
impairment rating was zero percent.
In a decision dated July 11, 2008, OWCP denied appellant’s claim for a schedule award.
In a January 29, 2009 decision, a hearing representative found an unresolved conflict between
Dr. Morley, who rated a 13 percent impairment of the upper extremity, and Dr. Angley, who

2

determined that there was no impairment. The case was remanded for referral to an impartial
medical examiner.2
On April 22, 2010 OWCP referred appellant to Dr. Michael J. Jurenovich, an osteopath,
for a second opinion. In a May 12, 2010 report, Dr. Jurenovich noted that appellant had
subjective complaints of pain, fatigue, discomfort and weakness-causing impairment, but noted
that she took no pain pills or anti-inflammatory medications. Appellant had a full range of
motion in her hands, right elbow and right shoulder with good extension, flexion, pronation and
supination. Utilizing the sixth edition of the A.M.A., Guides, page 449 Table 15-23,
Dr. Jurenovich determined that appellant had a three percent impairment based on her carpal
tunnel condition. Pursuant to page 402, Table 15-5, appellant had a zero percent (no)
impairment of her shoulder since the examination was unremarkable. Dr. Jurenovich noted at
page 398, Table 15-4, appellant had a zero percent (no) impairment of her elbow. In a May 13,
2010 addendum, he indicated that the three percent rating was total for the bilateral carpal tunnel
issues combined.
OWCP referred appellant’s case to Dr. Tonne. In a report dated June 14, 2010,
Dr. Tonne determined that appellant had a zero percent (no) impairment of either the left or right
upper extremity. He noted that Dr. Jurenovich applied the sixth edition of the A.M.A., Guides,
but failed to provide a detailed assessment of the modifiers according to the A.M.A., Guides, nor
had he detailed calculations for review. Although Dr. Jurenovich found a three percent
impairment to the upper extremities, it was not clear what percentage he applied to which
extremity. He found a zero percent (no) impairment after applying the A.M.A., Guides3 due to
the absence of permanent impairment due to carpal tunnel syndrome. Dr. Tonne also found that
zero percent impairment applies with regard to right shoulder bursitis and right elbow lateral
epicondylitis.
By decision dated June 25, 2010, OWCP denied appellant’s claim for a schedule award.
By decision dated September 15, 2010, an OWCP hearing representative set aside the decision.
The case was remanded to Dr. Jurenovich to document a complete examination, including a
more detailed description of his findings.
On remand, OWCP provided Dr. Jurenovich an opportunity to update his findings. In an
October 11, 2010 report, Dr. Jurenovich stated that he still found appellant had a three percent
impairment based on bilateral hand carpal tunnel issues. He advised that no grade modifier was
needed.
2

OWCP referred appellant to Dr. Nasimullah Rehmatullah, a Board-certified orthopedic surgeon, for an impartial
medical examination. In an April 6, 2009 report, Dr. Rehmatullah stated that appellant had a six percent impairment
of her right upper extremity based on the fifth edition of the A.M.A., Guides. In reviewing Dr. Rehmatullah’s
opinion on February 15, 2010, OWCP’s medical adviser, Dr. Brian M. Tonne, a Board-certified orthopedic surgeon,
stated that Dr. Rehmatullah had not provided complete information and that he had not followed the sixth edition of
the A.M.A., Guides. In a March 25, 2010 letter, Dr. Rehmatullah stated that he was unable to provide a rating under
the sixth edition of the A.M.A., Guides. Accordingly, OWCP did not utilize his opinion and continued to develop
the medical evidence.
3

OWCP’s medical adviser cites to A.M.A., Guides (sixth edition) 449, Table 15-23; 402, Table 15-5; and 398,
Table 15-4.

3

By letter dated January 14, 2011, OWCP referred appellant to Dr. Kenneth Chapman, a
Board-certified orthopedic surgeon, to resolve a conflict between Dr. Jurenovich, the second
opinion physician, and Dr. Tonne with regard to appellant’s permanent impairment. In a
February 6, 2011 report, Dr. Chapman found that appellant had a zero percent impairment
pursuant to the sixth edition of the A.M.A., Guides. He applied Figure 15-2 on page 388 of the
A.M.A., Guides. Dr. Chapman noted that appellant’s primary impairing diagnosis was carpal
tunnel syndrome, with secondary diagnosis of bursitis of the right shoulder and lateral
epicondylitis of the right elbow. On examination, he found no evidence of decreased strength,
atrophy or anklyosis, no sensory changes other than subjective ones, and no other abnormality
with the hands. Utilizing the tables for diagnosis-based impairment, Dr. Chapman determined
that appellant had class 0 impairment of his shoulder and elbow, with a final upper extremity
impairment of 0. With regard to peripheral nerve entrapment, he determined that appellant had a
grade 0 and class 0 impairment based on sensory and motor, with 0 in grade modifiers, for an
impairment of 0 percent.
By decision dated March 4, 2011, OWCP denied appellant’s claim for a schedule award.
By decision dated August 25, 2011, a hearing representative remanded the case for a de novo
review. He noted that OWCP gave greater weight to the opinion of Dr. Chapman as an impartial
medical examiner, but since Dr. Jurenovich was a second opinion physician rather than
appellant’s treating physician, Dr. Chapman’s medical report was only entitled to the weight
accorded a second opinion. The hearing representative also noted that Dr. Chapman’s opinion
should have been referred to OWCP’s medical adviser for review and comment.
On remand, OWCP referred the case to Dr. Glen, an OWCP medical adviser. On
September 15, 2011 he determined that appellant had a zero percent (no) impairment of either
the right or left upper extremities based on the opinion of Dr. Chapman, whom he noted was the
impartial medical examiner.
By decision dated November 17, 2011, OWCP again denied appellant’s claim for a
schedule award. On June 28, 2012 an OWCP hearing representative affirmed the decision,
finding that Dr. Chapman was the only physician of record to provide a proper evaluation of
impairment based on the sixth edition of the A.M.A., Guides.
On August 2, 2012 appellant requested reconsideration. She submitted a July 9, 2012
opinion by Dr. Robert C. Corn, a Board-certified orthopedic surgeon, who advised that appellant
had bilateral carpal tunnel syndrome that was for the most part resolved and chronic right lateral
epicondylitis. On examination, appellant evinced exquisite tenderness along the right lateral
epicondylar region that became more significant with dorsiflexion of the right wrist against
resistance. There was no pain along the medial aspect of the elbow and that the range of motion
in the shoulder elbow, wrist and small joints of the hand were normal. Dr. Corn opined that to a
reasonable degree of medical certainty, the right lateral epicondylitis was directly and causally
related to the work she performed which was clerical and repetitive in nature. The repetitive use
of appellant’s upper extremities was significant enough to cause bilateral carpal tunnel
syndrome. Dr. Corn noted that, because of abnormal upper extremities usage, appellant
developed right lateral epicondyltis, and that, within a reasonable degree of medical certainty,
her current symptoms related to overuse in her federal employment.

4

In a decision dated January 31, 2013, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations4 set forth the
number of weeks of compensation payable to employee sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.5 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.8 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.9 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred, describes the impairment in sufficient detail to include, where
applicable, the loss in degrees of active and passive motion of the affected member or function,
the amount of any atrophy or deformity, decreases in strength or disturbance of sensation or
other pertinent description of the impairment with the percentage of impairment computed in
accordance with the A.M.A., Guides.10 An impairment description must be in sufficient detail so
the claims examiner and others reviewing the file will be able to clearly visualize the impairment
with its restrictions and limitations.11

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Daniel C. Goings, 37 ECAB 781 (1986).

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

G.E., Docket No. 09-1412 (issued February 17, 2010).

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (August 2002).
11

A.L., Docket No. 08-1730 (issued March 16, 2009).

5

ANALYSIS
OWCP accepted appellant’s claim for right shoulder bursitis, right epicondylitis and
bilateral carpal tunnel syndrome. Appellant filed a claim for a schedule award, which was
denied.
The Board notes that OWCP referred appellant to Dr. Chapman to resolve a conflict
between Dr. Jurenovich, a second opinion physician, and OWCP’s medical adviser, with regard
to appellant’s permanent impairment. However, a conflict under section 8123 cannot exist
unless there is a conflict between an attending physician and an OWCP physician.12 A conflict
cannot be created between an OWCP medical adviser and a second opinion physician.13
Accordingly, the Board finds that Dr. Chapman is not an impartial medical examiner but rather a
second opinion physician.
The Board finds that this case is not in posture for decision as further development of the
medical evidence is required. Dr. Morley, appellant’s attending osteopath, rated a 13 percent
impairment of the upper extremity without identifying the arm to which the rating applied. He
provided findings of range of motion of the right shoulder and commented on sensory loss at
both wrists due to carpal tunnel syndrome. Dr. Morley did not adequately explain his rating
under the fifth edition of the A.M.A., Guides, nor did he provide findings on examination that
were sufficient to allow subsequent reviewers to clearly visualize the impairment. The Board
further notes that Dr. Morley’s examination was conducted on November 6, 2006, and is over
seven years old. Dr. Morley’s opinion is of diminished probative value.
The opinion of Dr. Angley, the first OWCP medical adviser, is not probative. Dr. Angley
extrapolated from the report of Dr. Morley to find impairment of 15 percent of the right upper
extremity in his report dated July 18, 2007, but modified this conclusion in an April 9, 2008
report to find no impairment. In discussing the medical evidence, he noted that the medical
evidence established that there were no residuals of the allowed conditions, and that therefore the
impairment rating for both upper extremities would be zero percent. The Board finds that
Dr. Angley confused the issue of permanent impairment of a scheduled member with the issue of
disability for work based on an inquiry by a claims examiner. It is well established that a
claimant may have an employment-related condition that results in permanent impairment under
the A.M.A., Guides, without any disability for work or the need for continued medical
treatment.14 In reaching his conclusion, Dr. Angley relied upon the dated medical opinion of
Dr. Morley and the other physicians then of record.
The opinion of Dr. Jurenovich is also of reduced probative value. He found that
appellant had a three percent impairment pursuant to the sixth edition of the A.M.A., Guides due
12

Delphia Y. Jackson, 55 ECAB 373 (2004); see also N.K., Docket No. 10-2214 (issued August 22, 2011).

13

A conflict under 5 U.S.C. § 8123(a) exists only when there is a disagreement between a physician making the
examination for the United States and a physician of the employee. See Leanne E. Maynard, 43 ECAB 482, 490
(1992); see also B.B., Docket No. 07-2222 (issued February 6, 2008).
14

See B.K., 59 ECAB 228 (2007); C.P., Docket No. 13-1293 (issued November 20, 2013); D.L., Docket No. 111971 (issued August 21, 2012).

6

to findings of carpal tunnel, but no permanent partial impairment of the shoulder or elbow.
Dr. Tonne, an OWCP medical adviser, reviewed Dr. Jurenovich’s opinion and noted that,
although Dr. Jurenovich stated that he applied the sixth edition of the A.M.A., Guides, he did not
provide a detailed assessment of modifiers according to the A.M.A., Guides, or any detailed
calculations for review. As noted, Dr. Jurenovich found a three percent impairment of the upper
extremities, but it was not clear what percentage he applied to which extremity. OWCP provided
Dr. Jurenovich an opportunity to correct the defects in his medical opinion, but his supplemental
report of October 11, 2010 does not correct the defects of the May 2010 report.
In a February 6, 2011 report, Dr. Chapman found that appellant had a zero percent (no)
impairment pursuant to the sixth edition of the A.M.A., Guides. He noted that appellant’s
primary impairing diagnosis was carpal tunnel syndrome with secondary diagnosis of bursitis of
the right shoulder and lateral epicondylitis of the right elbow. In describing his findings,
Dr. Chapman found no evidence of decreased strength, atrophy or anklyosis, no sensory changes
other than subjective ones and no other abnormality with the hands. Dr. Glen, an OWCP
medical adviser, reviewed Dr. Chapman’s findings and argued that there was no permanent
partial impairment. The Board finds that Dr. Chapman’s opinion is also of reduced probative
value. OWCP accepted appellant’s claim for conditions affecting the right shoulder, elbow and
both wrists. Dr. Chapman did not provide specific physical findings for each affected member
examined. His general findings are not specific enough to clearly visualize permanent partial
impairment, or lack thereof, to each member. Dr. Glen’s review was based on Dr. Chapman’s
insufficient findings. He also gave weight to Dr. Chapman as an impartial medical examiner.
As noted, Dr. Chapman is a second opinion physician.
Finally, the opinion of appellant’s attending physician, Dr. Corn, is largely irrelevant. He
addressed her carpal tunnel in both wrists and right epicondylitis but provided no findings
regarding permanent impairment.
Accordingly, the Board finds that the case is not in posture for decision. On remand,
OWCP shall refer appellant to a Board-certified orthopedic surgeon for examination and a
second opinion on the extent and nature of any permanent impairment due to the accepted
conditions of right shoulder bursitis, right epicondylitis and bilateral carpal tunnel syndrome.
Following any further development, OWCP shall issue a de novo decision as to whether
appellant has any permanent impairment warranting a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 31, 2013 is set aside and the case is remanded for further
consideration consistent with this opinion.
Issued: April 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Pittsburgh, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0913
Issued: June 23, 2017

Case Submitted on the Record

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

JURISDICTION
On March 20, 2017 appellant filed a timely appeal from a February 3, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to his December 16, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its February 3, 2017
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On December 16, 2016 appellant, then a 54-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that he slipped while exiting his vehicle on that date
injuring his right shoulder. He alleged a right shoulder strain. Appellant’s supervisor indicated
that appellant was injured in the performance of duty.
In a letter dated January 3, 2017, OWCP noted that appellant did not submit any
supportive evidence with his traumatic injury claim (Form CA-1) and requested that he provide
additional factual and medical evidence establishing that the alleged employment incident
occurred, that he sustained a diagnosed medical condition, and that the diagnosed condition was
causally related to the employment incident. It afforded him 30 days to reply.
In a January 31, 2017 response, appellant asserted that on December 16, 2016 at 9:55
a.m. he was exiting his work van when his left foot slid from under him. He reached and
grabbed the seat arm rest, pulling his shoulder. Appellant felt his arm pop as well as pain in his
left leg and back. He first sought medical treatment on December 20, 2016. Appellant
submitted a magnetic resonance imaging (MRI) scan dated January 9, 2017, which demonstrated
a full thickness rotator cuff tear involving the supraspinatus and infraspinatus tendons. This
report indicated that he experienced persistent right shoulder pain after a fall in December 2016.
Dr. John D. Lehman, a Board-certified orthopedic surgeon, examined appellant on January 23,
2017 and recommended surgery for the full thickness supraspinatus tear and ruptured biceps.
Appellant submitted a note from a physician assistant, whose signature is illegible,
indicating that he was seen in the emergency department on December 20, 2016.
By decision dated February 3, 2017, OWCP found that appellant had established that he
was a federal employee who had filed a timely claim, that the employment incident had occurred
as alleged, that a medical condition had been diagnosed, and that he had been within the
performance of duty. However, it denied his claim as the medical evidence of record was
insufficient to establish causal relationship between his diagnosed shoulder conditions and his
December 16, 2016 employment incident of slipping while exiting his work vehicle.
LEGAL PRECEDENT
An employee 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 the fact that the individual is an “employee of the United States” within the
meaning of FECA and that he or she filed the claim within the applicable time limitation.4 The
employee must also establish that he sustained an injury in the performance of duty as alleged,
and that his disability from work, if any, was causally related to the employment injury.5
3

Supra note 1.

4

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

5

Id., Elaine Pendleton, 40 ECAB 1142, 1145 (1989).

2

OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether fact of injury has been established. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged.7 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.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to his accepted December 16, 2016 employment incident.
Appellant alleged that he sprained his right shoulder on December 16, 2016 when he
slipped as he exited his work vehicle and grabbed the arm rest on the seat pulling his shoulder.
The medical evidence submitted in support of his claim consists of a right shoulder MRI scan
report and a note from Dr. Lehman. The MRI scan report described appellant’s history as falling
in December 2016. This does not correspond to appellant’s description of the employment
incident, which was a slip from a vehicle and sliding his left foot to grab to the vehicle’s arm
rest. Furthermore, the MRI scan report did not provide any opinion on the causal relationship
between his diagnosed rotator cuff tear and the accepted employment incident. Due to the lack
of both a correct and detailed history of injury12 and the lack of an opinion on the causal
6

20 C.F.R. § 10.5(ee).

7

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

8

J.Z., 58 ECAB 529 (2007).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

12

D.E., Docket No. 16-1604 (issued February 1, 2017); Daniel J. Overfield, 42 ECAB 718 (1991) (medical
opinions which are based on an incomplete or inaccurate factual background are entitled to little probative value in
establishing a claim).

3

relationship between appellant’s employment incident and diagnosed condition,13 this report is
insufficient to meet his burden of proof.
Appellant also submitted a note from a physician assistant. Certain healthcare providers
such as physician assistants, nurse practitioners, physical therapists, and social workers are not
considered physicians as defined under FECA.14 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.15
Appellant may submit new evidence16 or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to his December 16, 2016 employment incident.

13

D.R., Docket No. 16-0528 (issued August 24, 2016) (if medical reports do not provide an opinion on the cause
of the claimant’s condition, the opinions are insufficient to establish causal relationship).
14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

15

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

16

Appellant may submit this or any evidence to OWCP, together with a formal request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

4

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2017
Washington, DC

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

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

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

5