United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER -- JEFFERSON BARRACKS,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 15-1408
Issued: November 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2015 appellant, through counsel, filed a timely appeal from a June 4, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to expand his claim to
include additional conditions; and (2) whether he established permanent impairment to his right
upper extremity impairment caused by the accepted April 25, 2014 employment injury, resulting
in a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 28, 2014 appellant, then a 62-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 25, 2014 he was attacked and pushed into a
glass frame by a volunteer while at work. He stated that this caused left shoulder pain and a
contusion and abrasions to the left elbow. Appellant did not stop work. An employing
establishment police investigation confirmed that the assault took place.
In an emergency room report dated April 25, 2014, Dr. Wahied Gendi, a Board-certified
internist, described the injury and appellant’s complaints of left shoulder pain and an abrasion of
the left arm. Physical examination demonstrated a superficial elbow abrasion and no obvious
shoulder deformity. Dr. Gendi diagnosed left shoulder pain and a superficial left arm abrasion.
Appellant was discharged on pain medication. A left shoulder x-ray demonstrated mild
degenerative arthritis and no acute traumatic injury of the bone or joint. On April 29, 2014
Melissa E. Nixon, a nurse practitioner, described the injury and reported that appellant’s left
shoulder had improved 70 percent but was still stiff and sore and that his left elbow abrasion had
scabbed without infection.2
On June 13, 2014 OWCP accepted left shoulder contusion and left elbow abrasion. The
employing establishment indicated that appellant missed no days from work and was working
full time.
Appellant filed a schedule award claim (Form CA-7) on July 28, 2014. By letter dated
August 11, 2014, OWCP informed him of the evidence needed to support a schedule award
claim. This was to include, in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3
an opinion that his condition had reached a permanent and fixed state (maximum medical
improvement), a diagnosis on which the impairment was based, and an impairment rating
specific to the conditions accepted by OWCP as work related. Appellant was given 30 days to
provide the requested information. No additional information was provided.
By decision dated September 11, 2014, OWCP denied appellant’s claim for a schedule
award as appellant had not submitted the requested medical information.
On April 20, 2015 appellant requested reconsideration and an expansion of his claim. In
a February 3, 2015 treatment note, Melissa S. Stevens, a physician assistant, noted appellant’s
complaints of left shoulder pain, clicking, and popping that had occurred since an assault on
April 25, 2014. The shoulder was nontender to palpation on examination. Shoulder range of
motion was diminished. Ms. Stevens diagnosed left shoulder impingement, possible rotator cuff
tear, and ordered a magnetic resonance imaging (MRI) scan. A March 19, 2015 MRI scan of the
left shoulder demonstrated an undersurface tear with possible pinhole full thickness component.

2

The record also includes a May 8, 2014 x-ray of the right hand that demonstrated a healing fracture of the
proximal phalanx of the second finger. This was from a February 6, 2014 nonemployment-related injury.
3

A.M.A., Guides (6th ed. 2nd prtg. 2009).

2

By decision dated June 4, 2015, OWCP found that appellant had not met his burden of
proof to expand his claim to include an additional medical condition caused, aggravated, or
accelerated by the April 25, 2014 assault and that no permanent impairment had been
established.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 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.5 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.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand her claim to
include any additional conditions related to the April 25, 2014 injury. The medical record is
devoid or medical evidence from a physician who diagnosed an additional condition.
The March 19, 2015 MRI scan does not contain an opinion as to the cause of the
diagnosed condition. 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.7
The treatment note from Ms. Stevens dated February 3, 2015 is of no probative value.
Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope
of their practice as defined by State law.8 Reports from a physician assistant are not considered
medical evidence as a physician assistant is not considered a physician under FECA.9
Appellant did not meet his burden of proof to establish an additional condition caused by
the April 25, 2014 employment injury.
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.
4

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

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

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

7

Willie M. Miller, 53 ECAB 697 (2002).

8

5 U.S.C. § 8101(2); see Roy L. Humphrey, 57 ECAB 238 (2005).

9

Ricky S. Storms, 52 ECAB 349 (2001).

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LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA10 and its implementing federal regulations11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
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 for all claimants, OWCP has adopted
the second printing of the sixth edition of the A.M.A., Guides as the uniform standard applicable
to all claimants.12 For decisions after May 1, 2009, the sixth edition of the A.M.A., Guides will
be used.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).15 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).16
ANALYSIS -- ISSUE 2
As noted above, the accepted conditions in this case are left shoulder contusion and left
elbow abrasion. It is the claimant’s burden to establish that he sustained a permanent impairment
of a scheduled member or function as a result of the accepted employment injury.17 OWCP
procedures provide that to support a schedule award, the file must contain medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred, and describes the impairment in sufficient detail.18 The percentage of
impairment should be computed in accordance with the sixth edition of the A.M.A., Guides.
Appellant submitted no such evidence in this case.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
14

Supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”
15

Id. at 385-419.

16

Id. at 411.

17

D.F., Docket No. 09-1463 (issued August 12, 2010).

18

Supra note 13 at Chapter 2.808.5b.

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There is no medical evidence of record that provides an impairment rating. On
August 11, 2014 OWCP advised appellant of the type of medical evidence needed to support a
claim for a schedule award. Appellant did not submit responsive evidence. Thus, there is no
medical report of record containing an opinion supporting that appellant’s accepted conditions
caused any permanent impairment to a scheduled member. Consequently, there is no medical
basis to support entitlement to a schedule award.19
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to expand his claim to
include additional medical conditions or to establish permanent impairment to his right upper
extremity impairment caused by the accepted April 25, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

See H.G., Docket No. 09-88 (issued June 3, 2009).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Orlando, FL, Employer
__________________________________________

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Appearances:
Stephanie G. Bernstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-114
Issued: April 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2013 appellant, through counsel, filed a timely appeal from a July 16,
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 met her burden of proof to establish entitlement to
compensation for wage loss for the periods September 10 through 14 and September 24
through 28, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 31, 2012 appellant, then a 36-year-old claims examiner, filed a traumatic injury
claim alleging that on July 25, 2012 she sustained injury when she became stuck in an elevator
that malfunctioned for approximately 90 minutes. She stopped work on July 25, 2012 and
returned to work on July 31, 2012. Appellant stopped work again on August 17, 2012. On
September 28, 2012 OWCP accepted the claim for an acute reaction to stress.2 Appellant
returned to work on October 2, 2012 and worked until October 30, 2012. She returned to work
again on November 6, 2012 and stopped work on February 26, 2013.3
On September 14, 2012 appellant filed a claim for wage-loss benefits for the period
September 10 through 14, 2012. The employing establishment indicated on the claim form that
appellant received continuation of pay from July 26 through September 9, 2012.
In a September 7, 2012 e-mail message to Bonnie J. Wax, human resource manager,
appellant noted that during her appointment that day with her therapist, Reginald Deaton, she
was advised that Tamanique Clarke, a human resource representative, had reported that she had
been seen using the elevator at work. Appellant asserted that this was impossible since she had
not used the elevators at work since the July 15, 2012 elevator incident. She indicated that
Ms. Clarke lied to OWCP and that this situation has caused her more anxiety and undue stress.
Appellant stated that her anxiety was at an all-time high and to find out that false allegations had
been made against her traumatized her further. She requested that she be given a different
human resource representative whom she could contact as her trust in Ms. Clarke had been
broken.
Appellant submitted a questionnaire dated August 31, 2012 and that August 31 and
September 18, 2012 reports from Mr. Deaton, a licensed mental health counselor.
On October 1, 2012 appellant filed a claim for wage-loss benefits from September 24
through 28, 2012.
In an October 10, 2012 letter, OWCP noted that the medical reports submitted with her
claims were not signed by a physician as defined under FECA and were insufficient to establish
her disability for the claimed periods. It advised her to submit additional medical evidence
establishing her disability for work due to the residuals of her accepted injury. Appellant was
accorded 30 days to submit the requested information.

2

OWCP also accepted a separate claim involving knee injury under claim number xxxxxx327.

3

The record reflects that appellant filed a claim for wage loss for the period October 30 to November 2, 2012,
which OWCP denied in a decision dated February 4, 2013. She also filed a claim for wage loss for the period
February 26, 2013 and continuing, which OWCP adjudicated in decisions dated June 28, 2013 and
January 28, 2014. These claims are not relevant to the period of wage loss claimed in the present claim and will not
be discussed. By decision dated June 28, 2013 and amended on July 2, 2013, OWCP also denied appellant’s claim
for a recurrence of disability from February 26, 2013 due to a material change/worsening of her accepted workrelated conditions. This claim is not before the Board.

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OWCP received an October 10, 2012 work capacity evaluation form from Mr. Deaton
and an October 26, 2012 letter from Dr. Prachi Gandhi, an osteopath, who noted that appellant
was evaluated at an urgent care center on August 19, 2012 by Andres Martinez-Deleon, Jr., a
nurse practitioner, and diagnosed with anxiety disorder and claustrophobia after an incident
which occurred at her place of employment. Dr. Gandhi reviewed appellant’s medical records
and concurred with Mr. Martinez-Deleon that appellant would benefit from psychological
treatment and medication. He recommended that “giving the patient time off from work for the
month of September would give the patient time to become accustomed to the new medication.”
By decision dated November 19, 2012, OWCP denied appellant’s claim for
compensation from September 10 to 14 and September 24 to 28, 2012.
In a May 29, 2013 letter, appellant, through her representative, requested reconsideration.
She submitted medical documentation from Patricia P. Barber, a physician’s assistant, and
Dr. Aysha Meloukheia, a psychiatrist.
In an April 27, 2013 report, Ms. Barber, noted a history of injury and prior medical
history. Prior to the work incident, appellant advised her that there was a fatal shooting at her
worksite and, while she was not present at the time of the shooting, she recalled seeing blood
stains in the stairwell. Ms. Barber noted that, because of appellant’s inability to step into an
elevator following the July 25, 2012 incident, appellant climbed the stairs and aggravated a
preexisting knee condition. Appellant reported that, since the July 25, 2012 incident, she
experienced resistance to accommodate her psychological and physical needs and experienced a
hostile work environment. Ms. Barber noted that appellant wished to return to full-time
employment, but felt frustrated by the employing establishment not accommodating her needs.
She treated appellant on February 25, March 13 and April 4, 2013 and stated that appellant was
disabled since September 1, 2012. Ms. Barber stated that the onset and severity of appellant’s
symptoms were directly related to her traumatic experiences at work along with some
predisposing factors in her life, her difficulty returning to work, and the perceived resistance of
accommodating her work.
In a May 8, 2013 report, Dr. Meloukheia advised that she treated appellant for a workrelated stress condition as a result of the July 25, 2012 work incident. She diagnosed posttraumatic stress disorder and major depression disorder, recurrent, moderate. Dr. Meloukheia
opined that appellant’s diagnosed conditions were caused by the July 25, 2012 incident of being
trapped in an elevator. She stated that after a comprehensive evaluation of appellant, she was in
agreement with Ms. Barber’s assessment and detailed findings.
Appellant submitted a March 3, 2013 list of discharge medications; a March 3, 2013 note
from Dr. Nusrath H. Baig, a Board-certified psychiatrist, who advised that appellant was
hospitalized from February 25 to March 4, 2013 and recommended that she be off work for six
weeks. On February 26, 2013 Dr. Meloukheia addressed appellant’s admission for stabilization.
On March 29, 2013 she stated that appellant was unable to work due to her illness. On April 16,
2013 Dr. Meloukheia advised that appellant had been unable to work since January 2013 and had
a tentative return to work date of October 16, 2013. In an April 23, 2013 work capacity
evaluation, she noted that appellant was unable to perform her usual job due to her disabling
anxiety and depression and estimated her return to work on October 16, 2013.

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By decision dated July 16, 2013, OWCP denied modification of its November 19, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.4 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.5
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.6 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.7
ANALYSIS
Appellant filed a claim for wage-loss compensation alleging that she was disabled for
work from September 10 to 14 and September 23 to 28, 2012. The Board finds that she has not
submitted sufficient medical evidence to establish that her claimed period of disability was due
to her accepted condition of acute reaction to stress.
In an October 26, 2012 letter, Dr. Gandhi reported that appellant was evaluated on
August 19, 2012 by Mr. Martinez-Deleon, a nurse practitioner, and diagnosed with anxiety
disorder and claustrophobia after an incident which occurred at her place of employment.
Dr. Gandi stated that he had reviewed appellant’s medical records and concurred with
Mr. Martinez-Deleon that appellant would benefit from psychological treatment and medication.
He did not provide any findings from evaluation. Dr. Gandi’s statement that “giving the patient
time off from work for the month of September [to] give the patient time to become accustomed
to the new medication” is prophylactic in nature. Dr. Gandi did not sufficiently address how
appellant’s disability for the claimed periods was due to the accepted condition. His report is
insufficient to establish disability causally related to the accepted condition.

4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Dean E. Pierce, 40 ECAB 1249 (1989).

6

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

7

Amelia S. Jefferson, supra note 4.

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In a May 8, 2013 report, Dr. Meloukheia stated that a detailed psychiatric evaluation had
revealed post-traumatic stress disorder and major depression disorder, recurrent, moderate. She
advised that appellant’s diagnosed conditions were caused by the July 25, 2012 work incident of
being trapped in the elevator. Dr. Meloukheia, however, did not set forth any findings pertaining
to appellant’s psychiatric evaluation or specifically address the periods of disability claimed.
She further stated her agreement with Ms. Barber’s assessment of appellant’s condition.
Dr. Meloukheia’s citations to Ms. Barber’s findings without providing additional medical
rationale is insufficient to establish appellant’s claim of disability in September 2012. She does
not address how appellant became disabled due to the accepted condition. Dr. Meloukheia’s
report is insufficient to establish her claim.
Dr. Meloukheia also generally endorsed the April 27, 2013 report from Patricia P.
Barber, a licensed mental health counselor, who included a history of the July 25. 2012 work
history and diagnosed appellant with several psychological conditions. Ms. Barber stated that
appellant was disabled after September 1, 2012. She stated that the onset and severity of
appellant’s symptoms were related to her traumatic experiences at work together with
predisposing factors in appellant’s life, her difficulty returning to work and the perceived failure
of the employing establishment to accommodate her needs. The Board notes that Ms. Barber is
not a physician as defined under FECA. The May 8, 2013 report of Dr. Meloukheia consists of
one page without sufficient explanation as to how appellant became disabled from September 10
to 14 or September 24 to 28, 2017 due to residuals of her accepted acute stress reaction to the
July 25, 2012 incident. The Board notes that following the incident appellant returned to work
on several occasions prior to stopping on February 26, 2013. Neither Dr. Meloukheia was
Ms. Barber adequately address the period of disability claimed.
The reports from Mr. Deaton also a licensed mental health counselor, are not those of a
physician as defined in section 8102(2) of FECA. The term physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.8 Mr. Deaton is not a
physician under FECA and his reports are not considered medical evidence to establish
appellant’s wage-loss claim.
The other medical records received refer to periods of time other than the period of
disability claimed from September 10 to 14 and September 24 to 28, 2012. These records are not
relevant to the issue of appellant’s disability.
There is no probative medical evidence of record which addresses how appellant became
disabled from work on the dates claimed or which explains how her disability is attributable to
the July 25, 2012 injury. Appellant failed to submit sufficient rationalized medical opinion
evidence to establish that she was unable to work from September 10 to 14 or September 24,
to 28, 2012 due to her accepted condition. She had failed to establish that she was disabled and
is not entitled to wage-loss compensation for claimed periods.
On appeal appellant’s representative argues that the medical evidence supports that
appellant was totally disabled as a result of the work injury during the relevant periods. She
8

5 U.S.C. § 8102(2); see Roy L. Humphrey, 57 ECAB 238 (2005).

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notes that OWCP accepted that appellant suffered both a stress injury and a knee injury and the
two injuries are inherently intertwined. For the reasons stated, the medical evidence is
insufficient to support appellant’s disability for the periods claimed from September 10 to 14 and
September 24 to 28, 2012.
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 her disability from September 10 to 14
and September 24 to 28, 2012.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 28, 2014
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Armada, MI, Employer
__________________________________________

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

Docket No. 09-1003
Issued: December 2, 2009

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 March 3, 2009 appellant, through counsel, filed a timely appeal from the merit
decision of the Office of Workers’ Compensation Programs dated August 6, 2008 denying her
claim for compensation and from the February 3, 2009 decision affirming that decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an occupational disease causally related to factors of her federal employment.
On appeal appellant, through her attorney, argues that the Office’s decision is contrary to
fact and law.
FACTUAL HISTORY
On May 13, 2008 appellant, then a 51-year-old rural carrier, filed an occupational disease
claim alleging that the “discs in back of my neck are messed up.” When asked to describe the

relationship of the occupational disease to her employment, she indicated that she had a magnetic
resonance imaging (MRI) scan which indicated that her discs were causing the headaches and
back spasms. Appellant alleged that she first became aware of her disease or illness on June 7,
2003, and first became aware that it was caused or aggravated by her employment on
January 21, 2008.
In a January 21, 2008 report, Dr. Steven Beall, a Board-certified neurologist, noted that
appellant had daily headaches. He noted that appellant indicated the headaches occur every day
and there are no specific triggers.
A February 11, 2008 MRI scan was interpreted as evincing severe bilateral cerebral white
matter lesions, nonspecific in nature, which would be compatible with a demyelinating process
such as multiple sclerosis if supported by appropriate clinical settings.
In a March 25, 2008 report, Dr. Beall noted myelopathic quadriparesis as well as chronic
daily headaches most likely migraine headaches. In an April 1, 2008 report, he noted that
appellant had documented myelopathic quadriparesis lasting greater than 24 hours. Dr. Beall
noted that the evolution of the quadriparesis has been to virtually an upper motor neuron lower
extremity monoparesis with distal upper motor neuron quadriaresis. He noted that this was more
in favor of some inflammatory process. Dr. Beall also noted that appellant had some lesions in
the brain.
In an April 17, 2008 report, Dr. J. Matthew Voci, a Board-certified neurologist, noted that
appellant was having constant headaches that have a strong cervicogenic origin. He also noted
that appellant’s neck had significant degenerative changes from C3 through C6, but more so at
C4 and C5, where there is significant stenosis. Dr. Voci believed that clinical measures had
failed appellant. He noted that appellant delivered mail and that most of this activity involved
significant amounts of driving and leaning over the window and into a box. Therefore, Dr. Voci
noted that there is stretching and significant bending of the neck. He stated, “I strongly suspect
that 12 years of doing this has now played a toll on her neck, and has led to degradation of
changes in the neck, including arthritic changes and disc damage.” Dr. Voci noted that an MRI
scan supported an acute upon chronic presentation. He noted abnormal white matter spots on her
brain, which he suspected may be microvascular changes.
By decision dated August 8, 2008, the Office denied appellant’s claim as she did not
submit sufficient factual evidence to establish that specific events occurred during her federal
employment that she believed caused or contributed to her neck/headache condition. It also
noted that there was insufficient medical evidence as the evidence lacked a definitive
rationalized medical opinion from a physician to establish that a condition was causally related to
appellant’s employment injury/exposure.
On August 29, 2008 appellant, through counsel, requested an oral hearing.
subsequent letter, appellant’s counsel requested a telephonic conference.

In a

In an undated statement by appellant received by the Office on October 20, 2008, she
stated that she believed her neck problem was related to her job due to repetitive movement,
driving down dirt roads with big holes in them, and the stress of the job. She noted that, before

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her husband built her a special stand, casing mail was difficult because she is 5’2” and she would
have to reach, which was hard on her neck and shoulders. Appellant also noted that she started
getting headaches.
At a telephonic hearing held on December 8, 2008, appellant testified that she started
working for the employing establishment as a rural carrier in 1995 and that her headaches started
in 2003. She discussed her medical treatment. Appellant noted that while delivering mail she
would sit on a board between the passenger and driver seat, drive with left foot and steer with her
left arm and deliver mail with her right arm and right leg. She noted that when she hit a bump in
the road sometimes she would hit the roof. Appellant also testified that the stress of the job
would make her neck tense. She indicated that she delivered mail six days a week. Appellant
delivered mail for three and three-quarter hours and would case mail for about three hours during
which time she was constantly moving her neck. She noted that she had previous issues with a
tear in her rotator cuff in her right arm and right tennis elbow, but that these issues were
eliminated after surgery and exercises. Appellant testified that she has remained off work since
May or June 2008.
After the hearing, appellant submitted notes from a hospital stay at Mount Clemens
Regional Medical Center from August 9 through 13, 2008 signed by Dr. Bradley Hall, an
osteopath. On June 9, 2008 Dr. Hall performed an anterior cervical discectomy C3 to C7;
anterior arthrodesis C3-4, C4-5, C5-6, C6-7; reconstruction of spinal deformities C3-6; and
anterior segmental instrumentation C3 to C7. In a discharge summary dated August 13, 2008,
Dr. Hall indicated that appellant was admitted for an anterior cervical decompression with
arthrodesis C3-7. He discharged appellant with diagnoses of cervical spine kyphosis with
instability, herniated disc with cervical myelopathy at C3-7 and tobacco abuse. Appellant also
submitted a consultation report from Dr. Cynthia Housel, an osteopath, also with Mount Clemens
Regional Medical Center, listing impressions of posterior anterior cervical fusions C3-7; cervical
stenosis, migraine history and chronic tobacco abuse.
In a December 8, 2008 report, Dr. Hall diagnosed appellant with cervical myelopathy for
which she had undergone a cervical decompression with fusion. He then stated, “It is my
opinion a significant portion of her myelopathy is due to her employment with the [employing
establishment].” Dr. Hall did not anticipate a return to work until a final assessment had been
made.
By decision dated February 3, 2008, the hearing representative affirmed the August 6,
2008 decision of the Office denying her claim.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).

3

the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of 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 employment factors identified by the employee.7
Causal relationship is a medical issue8 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,9 must be one of reasonable medical certainty,10
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.11
ANALYSIS
The Office accepted that appellant was exposed to the work conditions that she alleged
caused her injury. However, it properly denied appellant’s claim as she failed to submit
rationalized medical evidence in support of her claim. Dr. Voci opined on April 17, 2008 that he
“strongly suspected” that appellant’s 12 years of delivering mail and leaning over the window
into a box led to degradation of changes in her neck, including arthritic changes and disc

3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

11

See William E. Enright, 31 ECAB 426, 430 (1980).

4

damage. However, he did not provide medical rationale explaining the nature of the relationship
between the diagnosed condition and the employment factors.
Dr. Hall reported on December 8, 2008 that a significant portion of appellant’s
myelopathy was due to her employment. However, his opinion was simply a declarative
statement and not a rationalized opinion on causation. Dr. Hall did not discuss what employment
factors caused appellant’s myelopathy or provide a complete factual and medical history that
related these factors to appellant’s diagnosis of myelopathy.
None of the other medical evidence in the record addresses any causal relationship
between appellant’s employment and any diagnosed condition. Drs. Beall and Housel discussed
various diagnoses for appellant but never mentioned her employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.12 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment13 or that the work activities produce symptoms
revelatory of an underlying condition14 does not raise an inference of causal relationship between
the two. As appellant failed to provide medical evidence establishing the causal relationship
between her factors of employment and a medical condition, the Office properly denied her
claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an occupational disease causally related to factors of her federal employment, as
alleged.

12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
13

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
14

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155,157 (1960).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 3, 2009 and August 6, 2008 are affirmed.
Issued: December 2, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ACADEMY, Annapolis, MD, Employer
__________________________________________

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

Docket No. 15-1619
Issued: April 11, 2016

Case Submitted on the Record

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

JURISDICTION
On July 23, 2015 appellant filed a timely appeal from a June 18, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has established more than four percent additional binaural
hearing loss for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its June 18, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 5, 1999 appellant, then a 35-year-old laundry equipment repairer, filed an
occupational disease claim (Form CA-2) alleging hearing loss caused by noise exposure at his
federal employment. OWCP accepted that appellant sustained binaural hearing loss on
March 27, 2000, but was granted an award only for eight percent monaural hearing loss in the
left ear as the hearing loss in the right ear was not ratable at that time. The award ran for 4.16
weeks from January 24 to February 22, 2000.
Appellant retired from the employing
establishment on June 30, 2014.
On June 11, 2014 appellant filed a Form CA-7 claim for an increased schedule award
based on additional hearing loss. He submitted a June 11, 2014 audiogram along with his
previous audiograms dating back to 1990.
OWCP referred appellant for a second opinion examination with Dr. Anwar Mumtaz, a
Board-certified otolaryngologist. In a March 16, 2015 report, Dr. Mumtaz diagnosed bilateral
sensorineural hearing loss secondary to noise exposure from his federal employment. He noted
that there were no other contributing factors, no advanced age-related presbycusis, and no
sudden shift in higher frequencies.
A March 16, 2015 audiogram performed on Dr. Mumtaz’ behalf tested decibel losses at
500, 1,000, 2,000, and 3,000 hertz and recorded losses of 15, 35, 50, and 55 in the left ear.
Testing at the same levels for the right ear recorded decibel losses of 10, 30, 30, and 50. Based
on these results and in accordance with American Medical Association, Guides to the Evaluation
of Permanent Impairment (sixth edition) (A.M.A., Guides), Dr. Mumtaz determined that
appellant had 22.625 percent monaural hearing loss of the left ear which included a two percent
rating for tinnitus and 9.5 percent monaural hearing loss of the right ear which included a two
percent rating for tinnitus. He found this equaled an 11.687 percent binaural hearing loss.
Appellant related to Dr. Mumtaz that tinnitus was 2-2.5 out of 5 in general and was only
bothering him when it was quiet during the night. Dr. Mumtaz recommended hearing aids.
On May 14, 2013 Dr. Duane J. Taylor, an OWCP medical adviser Board-certified in
otolaryngology, reviewed Dr. Mumtaz’ report and found that appellant had established only 7.5
percent monaural hearing loss in the right ear and 20.6 percent monaural hearing loss in the left
ear. He agreed with Dr. Mumtaz’ finding of 11.68 percent binaural hearing loss which included
2 percent for tinnitus. He determined that the date of maximum medical improvement was
March 16, 2015, the date of the most recent audiogram.
By decision dated June 18, 2015, OWCP granted appellant a schedule award for an
additional four percent binaural hearing loss to equal 12 percent binaural hearing loss, as
appellant had previously been paid an award for eight percent monaural hearing loss. The
increased award was for eight weeks of compensation and ran from March 6 to April 30, 2015.
On appeal appellant argues that it was not explained how the four percent impairment
was calculated or why the compensation period was only from March 6 through April 30, 2015.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
decibel losses at each frequency are added up and averaged.7 Then, the fence of 25 decibels is
deducted. The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of
monaural hearing loss. The binaural loss is determined by calculating the loss in each ear using
the formula for monaural loss. The lesser loss is multiplied by five, then added to the greater
loss and the total is divided by six to arrive at the amount of binaural hearing loss. The Board
has concurred in OWCP’s adoption of this standard for evaluating hearing loss.8
FECA, and its implementing regulations, provide for the reduction of compensation for
subsequent injury to the same scheduled member.9 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.10
ANALYSIS
On March 27, 2000 appellant received a schedule award for 8 percent monaural hearing
loss of the left ear. At that time he did not have ratable hearing loss in the right ear. On June 11,
2014 appellant requested an increased schedule award for binaural hearing loss.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009); see also
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 3.700.4.b
(January 2010).
7

Id.

8

See Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).
9

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

10

20 C.F.R. § 10.404(c)(1), (c)(2).

3

OWCP medical adviser, Dr. Taylor, applied OWCP’s standardized procedures to the
March 16, 2015 audiogram performed for the second opinion physician, Dr. Mumtaz. Testing at
500, 1,000, 2,000, and 3,000 hertz and recorded losses of 15, 35, 50, and 55 in the left ear.
Testing at the same levels for the right ear recorded decibel losses of 10, 30, 30, and 50. These
decibels were totaled at 155 for the left ear and 120 for the right ear, then divided by 4 to obtain
an average hearing loss at those cycles of 38.75 and 30 decibels respectively. The averages of
38.75 and 30 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to equal 13.75 and 5, which was multiplied by the established factor of 1.5 to
compute a 20.625 percent loss of hearing for the left ear and 7.5 percent loss of monaural hearing
for the right ear. Dr. Taylor then multiplied the 7.5 percent loss in the right ear (the hearing
impairment of the better ear) by five, then added it to the 13.75 percent loss in the left ear (the
hearing impairment of the poor ear) and divided the sum by 6 to calculate appellant’s binaural
hearing loss at 9.68 percent. He then added 2 percent impairment for tinnitus for 11.68 percent
binaural hearing loss.11 This was rounded to 12 percent binaural impairment.12 From the 12
percent binaural impairment, OWCP subtracted the previously awarded eight percent monaural
impairment, to find that appellant was entitled to compensation for four percent binaural
impairment. The Board finds that the manner in which OWCP subtracted the prior award is in
error.
The Board has held that, when determining additional binaural hearing loss after
previously awarding for monaural hearing loss, OWCP should convert the monaural impairment
to binaural impairment and then deduct that value from the newly determined binaural
impairment.13 OWCP had previously awarded appellant eight percent left ear monaural
impairment and found there to be no ratable impairment for the right ear. The medical adviser
should have taken the lesser hearing loss of 0 and multiplied it by 5 and added this figure to the
greater loss (eight percent) and divided by 6 which would have resulted in a hearing loss of 1.33
rounded down to one percent binaural loss.14 That one percent binaural hearing loss should have
then been deducted from the additional 12 percent binaural hearing loss calculation to provide an
increased binaural hearing loss of 11 percent.
The maximum number of weeks of compensation for hearing loss in both ears is 200
weeks.15 The medical evidence of record establishes that appellant has a total of 12 percent
binaural hearing loss. Twelve percent of 200 weeks is 24 weeks of compensation. As appellant
previously received 4.16 weeks of compensation under the March 27, 2000 schedule award and
11

The Board notes that the medical adviser properly added two percent impairment for tinnitus to the binaural
impairment rating, as it has been established that up to five percent may be added to a measurable binaural hearing
impairment. R.R., Docket No. 12-1840 (issued February 14, 2013). Dr. Mumtaz, in his March 16, 2015 report,
added two percent for tinnitus to both the left and right monaural impairment values then calculated the binaural
impairment. The Board notes that Dr. Mumtaz’ method results in the same outcome as adding tinnitus to the
binaural impairment value.
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(January 2010) (fractions should be rounded down from .49 or up from .50).
13

See James Turner., Docket No. 05-238 (issued January 24, 2006); see generally R.R., Docket No. 14-2031
(issued March 9, 2015).
14

See generally A.M.A., Guides 251.

15

5 U.S.C. § 8107(c)(13)(B).

4

an additional 8 weeks of compensation under the June 18, 2015 schedule award, appellant is
entitled to an additional 11.84 weeks of compensation.
On appeal appellant disputes the date on which the period of the award begins. He
believes the award should have begun on an earlier date. In hearing loss cases, the period
covered by a schedule award typically commences on the date of the medical examination and
audiogram upon which OWCP based the schedule award.16 This is generally referred to as the
date of maximum medical improvement. Moving the period of the award back in time will not
gain appellant additional compensation. Section 8107 of FECA provides only a finite amount of
compensation for permanent impairment.17
CONCLUSION
The Board finds that appellant has established more than four percent additional binaural
hearing loss for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

See generally Franklin L. Armfield, 28 ECAB 445 (1977) (discussing when the period of the award should
begin in hearing loss cases).
17

See P.F., Docket No. 07-730 (issued August 22, 2007).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Sea Side, CA, Employer
__________________________________________

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

Docket No. 18-1712
Issued: April 17, 2019

Case Submitted on the Record

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

JURISDICTION
On September 10, 2018 appellant filed a timely appeal from an April 25, 2018 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 this case.3

1
Appellant also filed a timely request for oral argument in this case. By order dated March 12, 2019, the Board
exercised its discretion and denied appellant’s request as the arguments could be addressed in a decision based on the
case record and oral argument would further delay issuance of a Board decision and not serve a useful purpose. Order
Denying Request for Oral Argument, Docket No. 18-1712 (issued March 12, 2019).
2
3

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 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted November 8, 2017 employment incident.
FACTUAL HISTORY
On December 21, 2017 appellant, then a 33-year-old medical supervisor assistant, filed a
traumatic injury claim (Form CA-1) alleging that, on November 8, 2017, she received a flu shot
vaccination from the employing establishment which caused nerve damage while in the
performance of duty. She first sought medical treatment on November 9, 2017 and stopped work
on November 16, 2017. On the reverse side of the form, appellant’s supervisor agreed with her
statements as to fact of injury and checked the box marked “yes” when asked if appellant was
injured in the performance of duty.
In a November 16, 2017 work status note, Tracy Hydorn, a physician assistant, reported
that appellant was evaluated at the Veterans’ Affairs (VA) General Medical Clinic and could return
to full duty on November 20, 2017.
Work status notes dated December 20, 2017 were also submitted from Dr. Dale A.
Helman, a Board-certified neurologist, who noted treatment for cervical radiculopathy and
cervicobrachialgia.
In a development letter dated January 8, 2018, OWCP informed appellant that the evidence
of record was insufficient to support her claim. Appellant was advised of the factual and medical
evidence necessary to establish her claim. In separate development letter of even date, OWCP
requested that the employing establishment provide comments pertaining to her alleged traumatic
injury claim. It afforded appellant and the employing establishment 30 days for submission of the
necessary evidence.
On January 11, 2018 appellant responded to OWCP’s development letter. She reported
that, on November 8, 2017, she received a flu shot which was required by the employing
establishment. Appellant explained that she felt pain in her right arm immediately after the flu
shot. She sent pictures to the nurse who administered the vaccination and was told to seek
treatment at urgent care, which she did. Appellant reported to work the following Monday, but
had continued pain and was instructed by her supervisor to seek treatment with the employing
establishment’s health clinic. She believed that her condition was connected to the flu shot because
she only experienced pain in her right arm with no pain on the left. Appellant sought treatment
with her primary care physician due to continued pain and was referred to a neurologist. She
reported that she had received flu shots in prior years without issue. Appellant further stated that
she had no prior work-related injuries.
In a January 30, 2018 report, Dr. Helman reported that he first evaluated appellant
approximately one month prior due to complaints of tingling in her right arm and, at times, on the
right side of her body. He reported that this dated back to the possibility of getting a flu vaccine
about a month and a half earlier. Dr. Helman explained that appellant’s evaluation thus far had
included a magnetic resonance imaging (MRI) scan of the head and an electrodiagnostic study.

2

He reported that the electrodiagnostic testing was unremarkable and the MRI scan revealed what
appeared to be possible microangiopathic issues. Dr. Helman reported that this was somewhat
enigmatic, but that her history was somewhat compelling that it was work related because of the
vaccine. He explained that he was an expert on immunology and may send appellant to a specialist
for a follow up. In a January 30, 2018 work status note, Dr. Helman diagnosed paresthesia of the
skin.
By decision dated February 7, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the November 8, 2017 employment incident
occurred as alleged.
On March 30, 2018 appellant requested reconsideration of OWCP’s decision.
Correspondence was submitted from the employing establishment discussing its
mandatory seasonal influenza program participation for all employees, which was to be
implemented by November 30, 2017.
In a letter received on February 13, 2018, R.H., appellant’s supervisor, reported that the
employing establishment concurred with her allegations regarding the November 8, 2017
employment incident. She further stated that the employing establishment mandated that all
employees receive the flu shot as a preventative health service program.
In progress notes dated November 13, 2017 from the VA General Medical Clinic,
Dr. Mary L. Roberts, Board-certified in internal medicine, reported that appellant received a flu
vaccine on November 9, 2017 and felt burning in her right arm and hand the moment the injection
was complete. The pain worsened the following day and she was evaluated in an emergency room
in New Jersey where she had traveled to attend her grandmother’s funeral. Dr. Roberts provided
findings on physical examination and diagnosed local reaction to influenza vaccine. She noted
that the neuropathic diagnosis of the right arm etiology was unclear.
In a November 15, 2017 progress note, Ms. Hydorn reported that appellant continued to
have soreness and tingling in the right arm and fingers following the flu vaccine.
By decision dated April 25, 2018, OWCP affirmed the February 7, 2018 decision, as
modified, finding that the evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted November 8, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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 is causally related to the

4

Supra note 2.

3

employment injury.5 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.6
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 can be established only by medical
evidence.7
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 supporting such causal relationship.8 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.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted November 8, 2017 employment incident.
In progress notes dated November 13, 2017, Dr. Roberts reported that appellant received a
flu vaccine and experienced immediate burning and pain down her right arm and hand. The Board
finds that the report of Dr. Roberts is insufficient to establish appellant’s claim for a work-related
traumatic injury.10 In her report, Dr. Roberts failed to provide a firm medical diagnosis, only
noting reaction to influenza vaccine.11 The Board has consistently held that pain is a description
of a symptom and are not a firm medical diagnoses.12 Furthermore, Dr. Roberts’ opinion on causal
relationship is speculative as she failed to provide a definitive opinion on the cause of appellant’s

5

S.B., Docket No. 17-1779 (issued February 7, 2018); Gary J. Watling, 52 ECAB 278 (2001).

6

S.C., Docket No. 18-1242 (issued March 13, 2019); Michael E. Smith, 50 ECAB 313 (1999).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

See 20 C.F.R. § 10.110(a); K.V., Docket No. 18-0723 (issued November 9, 2018); John M. Tornello, 35 ECAB
234 (1983).
9

See M.H., supra note 7; James Mack, 43 ECAB 321 (1991).

10

T.O., Docket No. 18-0139 (issued May 24, 2018).

11

D.R., Docket No. 18-1408 (issued March 1, 2019).

12
See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008); J.S., Docket No. 07-881 (issued August 1, 2007).

4

condition, noting only that the neuropathic diagnosis of the right arm etiology was unclear.13 Thus,
her report is insufficient to meet appellant’s burden of proof.14
Dr. Helman’s January 30, 2018 report is also insufficient to establish a work-related
condition as a result of the November 8, 2017 vaccination.15 He noted that appellant’s condition
was somewhat enigmatic, but that her history was somewhat compelling that it was work related
because of the vaccine. Dr. Helman’s opinion on causation is speculative and couched in equivocal
terms as he admitted that he did not know the cause of appellant’s condition. To be of probative
value, a physician’s opinion on causal relationship should be one of reasonable medical certainty.16
Furthermore, it is unclear what diagnosed condition the physician was referring to in his report.
Dr. Helman’s speculative statement regarding causation failed to provide a sufficient explanation
as to the mechanism of injury pertaining to this traumatic injury claim, namely, how a flu
vaccination administered in the right arm would cause appellant injury.17 As the report lacks the
specificity and detail needed to establish a November 8, 2017 work-related traumatic injury, the
opinion of Dr. Helman is insufficient to establish appellant’s claim.18
The remaining medical evidence of record is also insufficient to establish appellant’s claim.
Dr. Helman’s November 20, 2017 and January 30, 2018 work notes provided the diagnoses of
paresthesia of the skin, cervical radiculopathy, and cervicobrachialgia. While these notes reported
that appellant had been seen for treatment, recommended work restrictions, or requested that she
be excused from work, they did not provide findings and opinions regarding the cause of her
condition.19 The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value.20

13

J.L., Docket No. 17-0572 (issued August 6, 2018).

14

L.H., Docket No. 17-0982 (issued July 9, 2018).

15

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

16

See Beverly R. Jones, 55 ECAB 411 (2004).

17

See C.Z., Docket No. 16-0775 (issued October 20, 2016); S.W., Docket 08-2538 (issued May 21, 2009).

18

P.G., Docket No. 18-1547 (issued January 28, 2019).

19

L.D., Docket No. 18-1468 (issued February 11, 2019).

20
See L.B., Docket No. 18-0533 (issued August 27, 2018); C.B., Docket No. 09-2027 (issued May 12, 2010); S.E.,
Docket No. 08-2214 (issued May 6, 2009).

5

Ms. Hydorn’s notes from the VA clinic are of no probative value as physician assistants
are not considered physicians as defined under FECA.21 Consequently, their medical findings
and/or opinions lack probative value and are insufficient to establish appellant’s claim.22
The Board finds that because there is no rationalized medical evidence explaining how
appellant’s flu shot vaccination caused a diagnosed medical condition, appellant has not met her
burden of proof to establish her claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted November 8, 2017 employment incident.

21
5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. M.M., Docket No. 18-1096 (issued December 14, 2018); E.T., Docket No. 17-0265 (issued May 25,
2018) (physician assistants are not considered physicians under FECA).
22
S.C., Docket No. 18-1242 (issued March 13, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 17, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elkhart, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0875
Issued: December 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 23, 2016 appellant, through counsel, filed a timely appeal from a
December 15, 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 met her burden of proof to establish an injury in the
performance of duty on January 8, 2015.

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.

On appeal counsel argues that appellant’s injury occurred in the performance of duty,
because she had ended any deviation and was en route to the employing establishment at the
time of the incident on January 8, 2015.
FACTUAL HISTORY
On January 9, 2015 appellant, then a 55-year-old rural mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that on Thursday, January 8, 2015 at 5:45 p.m., she sustained
injuries to her head, legs, pelvis, and arms in a motor vehicle incident. Her regular work hours
were listed as from 6:30 a.m. through 3:00 p.m. on Mondays, Tuesdays, Thursdays, Fridays, and
Saturdays. A supervisor checked a box marked “yes” indicating that appellant had been injured
in the performance of duty and that appellant was disabled from work.
By letter dated January 15, 2015, a health and resource manager for the employing
establishment noted that appellant had been transported from the scene of the incident via
ambulance, and that she had sustained cranial injuries and a fractured pelvis as a result of the
incident.
In a report dated January 9, 2015, Dr. Mark Thompson, a Board-certified surgeon,
diagnosed polytrauma, a lateral compression pelvic ring injury, a head contusion with
intracranial injury, contusions to the knees without obvious fracture, and a possible ankle sprain.
He stated that she had been involved in a motor vehicle incident, but that the details were
unclear. In a follow-up report dated January 19, 2015, Dr. Thompson noted that appellant had
been involved in a motor vehicle incident, and that she was amnesiac to the events of the
incident. He diagnosed a mild closed-head injury and a nondisplaced pelvic fracture.
In a record of a telephone conversation dated January 21, 2015, an OWCP representative
contacted the employing establishment to determine whether appellant was in the performance of
duty at the time of the incident. The employing establishment verified that appellant was in her
postal vehicle at the time of the incident, but that she had deviated from her route. The
supervisor noted that appellant’s last delivery was between 4:30 p.m. and 4:40 p.m., while the
motor vehicle incident occurred at 5:45 p.m. It contended that appellant was not in the
performance of duty at the time of the incident.
In a police report dated January 8, 2015, a police officer stated that appellant was
westbound on State Road 120 on an icy roadway when she ran off the north side of the roadway
and into a yard. Appellant then traveled back onto the roadway, crossed into the oncoming
eastbound lane, and collided head-on with another vehicle. She was ejected from the vehicle and
suffered head bleeds and a pelvic fracture. Appellant stated that she did not remember the events
leading up to the crash. The driver of the other vehicle stated that he was traveling eastbound on
State Road 120 when appellant’s vehicle suddenly crossed into his lane and collided head-on
with his vehicle. The driver of the other vehicle stated that he could not avoid the collision. A
witness stated that he was traveling eastbound behind the driver of the other vehicle when he
observed appellant’s vehicle slide into a yard and then back onto the roadway. The witness
noted that appellant’s vehicle had then crossed into the eastbound lane and collided with the
other vehicle. The police had been informed of the accident at 5:18 p.m. on January 8, 2015 of
the incident, and arrived at the scene at 5:45 p.m. The police officer on the scene issued a
warning to appellant for driving too fast given the weather conditions.
2

By letter dated January 21, 2015, OWCP requested that appellant submit additional
factual evidence in support of her claim. It noted that the employing establishment contended
that she had deviated from her route and that the incident had occurred more than two hours after
the end of her regularly-scheduled tour of duty. OWCP requested that appellant respond to its
inquiries regarding whether she was performing regularly-assigned duties on the date of the
incident and to provide other information regarding the motor vehicle incident. It also requested
that the employing establishment provide information regarding whether appellant was in the
performance of duty at the time of the incident.
By letter dated January 26, 2015, appellant stated that she was involved in a motor
vehicle incident on January 8, 2015. She noted that she was driving a mail truck and that the
incident occurred due to adverse weather conditions. Appellant noted that she was on the clock
when the incident occurred.
By letter dated January 23, 2015, the employing establishment responded to OWCP’s
inquiries. It noted that conditions on the day of the incident included snow-covered roads.
Appellant’s supervisor had instructed her to return by 5:00 p.m., which was later than her route
evaluation time, due to the inclement weather conditions. Appellant was instructed to notify her
supervisor prior to 2:00 p.m. if she did not think she could return to the employing establishment
by 5:00 p.m. The employing establishment noted that it had a global positioning system (GPS)
that tracked carriers’ locations in real time, along with their speed. Using this system, it learned
that, on the date of the incident she had delivered her mail in reverse order, as the last delivery
normally on her route was the first delivery. The employing establishment stated that it assumed
that this deviation was due to its instruction to carriers that, if a road was not plowed for snow,
they should skip that location and come back at a later time to see if the road had been plowed.
However, a carrier is to call the employing establishment when they discover that a road is
impassable, or notify the employing establishment upon returning to the post office facility that
they had deviated from their normal route. The employing establishment stated that employees
were required to request deviation from their route prior to the deviation, and could not choose to
deviate from their line of travel without advance permission from their supervisor.
It was further noted that on January 8, 2015 appellant delivered her last parcel at 4:37
p.m. and at 4:50 p.m. she was at the intersection of County Road 19 and State Road 120 and
began traveling westbound on State Road 120. The employing establishment noted that had
appellant continued driving straight west on State Road 120 she would have arrived at the post
office facility by 5:00 p.m. The employing establishment noted that at no time during the day
did appellant indicate to her supervisor that she could not make it back to the post office by 5:00
p.m. nor did she call to inform her supervisor that she had deviated from her route. It stated,
however, that at 4:52 p.m. appellant turned north onto County Road 17 instead of continuing
west on State Road 120. The employing establishment noted that this was not on appellant’s line
of travel and that she had already made her last delivery and finished her route. Appellant
continued north on County Road 17 and at 4:55 p.m. turned west onto County Road 6. She
continued on County Road 6 until she reached County Road 15, at which time she turned around
in a driveway. Appellant continued on County Road 6 and followed it until turning north on
County Road 21 to County Road 8, and followed County Road 8 back to County Road 17. She
followed County Road 17 back to State Road 120. Between 5:16 and 5:17 p.m. she had returned
to State Road 120 and had turned westbound. The accident occurred at 5:18 p.m. westbound on
State Road 120. Appellant was traveling at a speed of 30 miles per hour. The employing
3

establishment noted that, had appellant continued on State Road 120 after her last delivery, she
could have avoided the accident and would have returned to the post office facility by 5:00 p.m.
as directed. The employing establishment concluded that, despite the fact that appellant had
turned back onto her employment line of travel, her 45-minute deviation took her outside the
performance of duty.
In a letter dated February 19, 2015, appellant responded to OWCP’s inquiries. She noted
that on January 8, 2015, she was involved in a motor vehicle incident while driving her mail
truck back to the employing establishment on her assigned route. She stated that she had no
memory of the incident but had never deviated from her assigned route, which was on State
Road 120. Appellant noted that white-out conditions had kept her out later than her evaluated
time, and that the weather conditions had caused the incident.
By decision dated February 23, 2015, OWCP denied appellant’s claim. It found that she
was not in the performance of duty at the time of the incident. OWCP found that the evidence
indicated that appellant had last performed an assigned duty approximately 45 minutes prior to
the time of the accident. OWCP noted that it had provided an opportunity for appellant to
explain the circumstances surrounding the deviation but she simply denied that she had deviated
from this route.
On March 13, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a neuropsychological evaluation report dated April 29, 2015, Dr. Paul Macellari, a
clinical neuropsychologist, noted that appellant exhibited some mild impairments in appellant’s
cognitive and memory functioning.
At the hearing, counsel noted that appellant had limited memory of what occurred on the
date of the motor vehicle incident. Appellant testified that the last thing she remembered on
January 8, 2015 was heading back towards the employing establishment, and that there had been
a white-out. She recalled that she looked down at her speedometer and noted that she was going
between 20 and 25 miles per hour and that she took her foot off the accelerator and then checked
to make sure her seatbelt was on, as they tended to slip off. The next thing appellant recalled
was waking up in the hospital. Appellant stated that she traveled the same route every day,
unless she had to deliver an extra piece of mail. She noted that she did not recall turning onto
County Road 17, and acknowledged that this was not part of her delivery route. Appellant also
did not recall driving on County Road 6 or County Road 15, turning around in a driveway, or
driving on County Road 21. She stated that she did not know why she would have driven on this
route. Appellant stated that the route as described by counsel indicated that she had been backtracking or turning around. She noted that she could not have been lost, because she was
familiar with these roads.
The hearing representative asked appellant if she could have been making deliveries on
these roads, and appellant stated that she could have been making deliveries, but that she did not
recall. Appellant contended that she never used her postal delivery vehicle for personal errands,
because she could not do that without asking permission. She stated that she did not remember
anything from the date of the incident, including her last delivery, except the white-out
conditions.
4

Counsel argued that, while appellant’s route was circuitous, she appeared to be heading
back towards the employing establishment at the time of the incident. He stated that due to her
traumatic brain injury, it was difficult for her to recall exactly what had occurred, but that this
gap in memory should not be used as a presumption to deny her benefits. The hearing
representative asked if appellant was in the course of traveling back to the employing
establishment at the time of the incident and appellant believed that she was en route back to the
employing establishment at the time of the incident.
By decision dated December 15, 2015, the hearing representative affirmed OWCP’s prior
decision of February 23, 2015. He stated that appellant had clearly diverted from the
performance of duty with regard to both time and distance. The hearing representative found
that appellant had completed her employment duties at 4:37 pm but did not make it back to the
office because of an accident at 5:18 p.m., 45 minutes later. He found that, despite the fact that
she had returned to her route for one minute prior to the incident, she was outside the scope of
her employment. The hearing representative found no evidence that the 45-minute diversion was
to pursue any benefit for the employing establishment and thus would have to be characterized as
a personal mission.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.3
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment. “In the course of employment” deals with the work setting, the
locale and time of injury whereas, “arising out of the employment,” encompasses not only the
work setting but also a causal concept, the requirement being that an employment factor caused
the injury. In addressing this issue, the Board has stated that in the compensation field, to occur
in the course of employment, in general, an injury must occur: (1) at a time when an employee
may reasonably be said to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.4
There are four categories of off-premises employees recognized by OWCP in its
procedure manual: (1) messengers, letter carriers, and chauffeurs who, by the nature of their
work, perform service away from the employer’s premises; (2) traveling auditors and inspectors
whose work requires them to be in a travel status; (3) workers having a fixed place of

3

See 5 U.S.C. § 8102(a).

4

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

5

employment who are sent on errands or special missions by the employer; and (4) workers who
perform services at home for their employer.5
ANALYSIS
Appellant filed a claim alleging that she sustained injuries to her head, legs, pelvis, and
arms in a motor vehicle incident on January 8, 2015. By decision dated December 15, 2015, a
hearing representative affirmed OWCP’s February 23, 2015 denial of her claim as appellant had
substantially deviated from her route, both in time and distance, prior to the accident and was
thus not in the performance of duty at the time of the incident.
In the present case, the record establishes that on January 8, 2015 appellant was
delivering mail on snowy roads, during white-out inclement weather. While appellant’s regular
work hours were from 6:30 a.m. to 3:00 p.m., there is no factual dispute that appellant’s
supervisor had allowed additional time for appellant complete her route and was told to return to
the employing establishment by 5:00 p.m., due to the inclement weather conditions. The
employing establishment noted that appellant delivered her last parcel at 4:37 p.m., and the
motor vehicle collision occurred at 5:18 pm, approximately 45 minutes. However, the Board
finds that appellant’s deviation was not for 45 minutes but rather only a 26-minute diversion.
The diversion did not begin until 4:52 p.m., when she turned north off County Road 120 and
onto County Road 17. The accident occurred 26 minutes later at 5:18 p.m., pursuant to the
police report.
It is well established that “an identifiable deviation from a business trip for personal
reasons takes the employee out of the course of his employment until he or she returns to the
route of the business trip, unless the deviation is so small as to be disregarded as insubstantial.”6
The initial question, therefore, is whether appellant deviated from a business trip for “personal
reasons” when she turned onto County Road 17 after delivering her last parcel.
In determining the purpose of a deviation, the Board must look to the evidence presented
to determine whether the errand furthers the employer’s business.7 Given the paucity of
evidence explaining appellant’s deviation from her route as furthering the business of the
employing establishment, her acknowledgement that she would not have been delivering mail on
Route 17, and given that she had already delivered her last parcel for the day before deviating
from her assigned route, the Board finds that the deviation was personal in nature.
Having established that the employee was engaged in a personal errand, the next question
is whether the deviation may be “insubstantial,” and therefore not remove the employee from the
course of employment. Insubstantial deviations are “largely the kind of momentary diversions
which, if undertaken by an inside employee working under fixed time and place limitations,
would be compensable under the personal comfort doctrine.”8
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5a (August 1992).

6

A. Larson, The Law of Workers’ Compensation § 19.00.

7

Amy Ureel (Michael Ureel), 51 ECAB 260 (1999).

8

Id. at 262.

6

Appellant’s deviation from her usual route was both circuitous and lengthy. On
January 8, 2015 appellant delivered her last parcel at 4:37 p.m. At that time, she should have
taken State Road 120 directly to the employing establishment, where she would have arrived by
5:00 p.m. Appellant was at the intersection of County Road 19 and State Road 120 at 4:50 pm
and turned to travel westbound toward the employing establishment on her normal route to return
to the employing establishment. At 4:52 p.m., however, rather than continuing westbound on
State Road 120, she turned north onto County Road 17. She continued north on County Road 17
and at 4:55 p.m. turned west onto County Road 6. Appellant continued on County Road 6 until
she reached County Road 15, at which time she turned around in a driveway. She continued on
County Road 6 and followed it until turning north on County Road 21 to County Road 8, and
followed County Road 8 back to County Road 17. Appellant followed County Road 17 back to
State Road 120. At 5:17 she had reached State Road 120 and had turned westbound, back on the
route to the post office facility. The accident occurred at 5:18 while she was traveling
westbound on State Road 120. Given the length of time, approximately 25 minutes and the
circuitous route she traveled, the Board finds that the deviation was significant, but not so
substantial a deviation as to find that appellant had abandoned her employment duties and that
any employment character of the travel would have ceased.9
The last step in the analysis is to determine at what point the personal deviation occurred
and whether, at the time of the accident, the employee had completed the personal errand and
resumed her business route. In Amy Ureel (Michael Ureel),10 the Board found that while the
deceased appellant had deviated from his usual route to return to his apartment to retrieve a
personal item, he had returned from the personal deviation at the time of the incident and
resumed his usual route back to the employing establishment. The Board noted, “The general
rule is that, once a personal deviation has been completed and the main business route is
resumed, an employee is once again in the performance of duty.11“
The incident in the present case occurred on State Road 120, the normal route that
appellant would have been taken when she was returning from her carrier duties. The Board
finds that, as appellant had regained the work-related route after the personal deviation, she had
returned to the performance of duty. Accordingly, the motor vehicle incident of January 8, 2015
occurred within the performance of duty.
Appellant did submit medical evidence to the record from Dr. Thompson which
diagnosed several medical conditions. As OWCP has not yet evaluated the medical evidence,
the case will be remanded to OWCP for evaluation of the medical evidence to determine whether
she sustained a medical condition and/or disability due to the January 8, 2015 employment
9

Supra note 7; cf. W.F., Docket No. 14-0015 (issued June 4, 2014) (where the employee’s injury occurred after
he had rebooked his travel flights for personal reasons); Barbara Stamey (Roy C. Stamey), 32 ECAB 1767 (1981)
(where the employee’s attendance at a prayer breakfast was considered a substantial deviation); S.C., Docket No.
10-1706 (issued May 9, 2011) (where the employee slipped and fell at midnight seven hours after her work ended
with no explanation as to why she was away from the hotel at that time); and Janice K. Matsumura, 38 ECAB 262
(1986) (where the employee had taken a sightseeing excursion around Manila when the accident occurred).
10

Supra note 7.

11

But see Katherine A. Kirtos, 42 ECAB 160 (1990) (where the employee had not returned to her authorized
route at the time of the accident).

7

incident.12 After such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that appellant was within the performance of duty at the time of the
January 8, 2015 incident. The Board further finds that this case is not in posture for decision
regarding any resulting injury or disability, as further development of the medical evidence is
warranted.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.13
Issued: December 12, 2017
Washington, DC

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

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

12

J.C., Docket No. 16-1206 (issued November 17, 2016).

13

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

8