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

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Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1929
Issued: March 9, 2007

Case Submitted on the Record

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

JURISDICTION
On August 16, 2006 appellant, through her representative, filed a timely appeal from a
June 28, 2006 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative, terminating her compensation and denying her claim for continuing disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage loss effective February 19, 2005 on the grounds that she no longer had any continuing
residuals or disability causally related to her; and (2) whether she established that she had any
continuing employment-related disability after February 19, 2005.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a May 2, 2001 decision, the
Board found that appellant sustained an unexplained fall while in the performance of duty on

February 11, 1998.1 The facts and the circumstances of the case as set forth in the Board’s prior
decision are incorporated herein by reference. By letter dated May 29, 2001, the Office accepted
appellant’s claim for abrasion to the face, cervical, lumbar and right hip strains. Appellant
performed limited-duty work intermittently until October 15, 2003 when she was sent home by
Acting Postmaster Darrin Johnson because no work was available within her physical
restrictions. She has not returned to work. On July 20, 2004 the Office accepted appellant’s
claim for cervical disc herniation.
By letter dated June 7, 2004, the Office requested that Dr. Paul Henrys, an attending
Board-certified orthopedic surgeon, provide a medical opinion as to whether appellant had any
continuing residuals or disability causally related to her accepted employment-related injuries.
The Office advised him to submit the requested information within 30 days. Dr. Henrys did not
respond within the allotted time period.
By letter dated September 7, 2004, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions, to Dr. Ismael Montane, a
Board-certified orthopedic surgeon, for a second opinion medical examination. In an October 3,
2004 medical report, Dr. Montane reviewed the history of appellant’s February 11, 1998
employment-related injury, medical treatment and social background. He reported essentially
normal findings on physical, neurological and x-ray examination. Dr. Montane diagnosed
cervical and lumbar radiculitis and arthritis of the right hip. He stated that the cervical and
lumbar radiculitis were related to the accepted employment injuries but that they should have
resolved within three months following the February 11, 1998 employment injury. Dr. Montane
further stated that appellant’s arthritis was not related to the employment injury, rather, it was
related to aging, obesity and a genetic predisposition to developing the condition. He also stated
that she may have sustained a sprained hip. Dr. Montane indicated that appellant’s subjective
complaints did not correspond to the objective findings. Appellant was capable of working full
time with no restrictions and her work-related conditions did not require any further medical
treatment. Dr. Montane stated that she only required anti-inflamatories for her right hip arthritis
and maybe total hip replacement in the future, which was not a result of the accepted
employment-related conditions. He opined that appellant did not have any continuing residuals
of her accepted employment-related injuries. Dr. Montane explained that she had a normal
physical and neurological examination and her x-ray results were consistent with a 60-year-old
woman.
By letter dated December 6, 2004, the Office proposed to terminate appellant’s
compensation based on Dr. Montane’s October 3, 2004 report. Appellant was provided 30 days
to submit additional evidence or argument.
In reports dated November 21, 2001 to April 16, 2003, Dr. Felix A. Stanziola, a Boardcertified orthopedic surgeon, noted that appellant sustained cervical and lumbar radiculitis and
osteoarthritis of the right and left hip.
1

Docket No. 00-1289 (issued May 2, 2001). On February 11, 1998 appellant, then a 53-year-old mail carrier,
filed a traumatic injury claim alleging that on that date she hurt her nose, left hand, right leg and back when she fell
while delivering mail.

2

On May 2, 2003 Dr. Richard E. Hernandez, a Board-certified internist, performed an
esophagogastroduodenoscopy and diagnosed Grade 2 reflux esophagitis, a hiatal hernia, a
schatzki ring and erosive gastritis. On May 3, 2003 Dr. Steven A. Simon, a Board-certified
anatomical and clinical pathologist, performed a biopsy and found mild chronic gastritis, focal
intestinal metaplasia and squamous and squamocolumnar mucosal fragments with chronic
inflammation including the presence of eosinophils within the suamous mucosa consistent with
reflux.
In a June 20, 2001 report, Dr. Jose L. Joy, a Board-certified neurologist, opined that
appellant sustained herniated discs at C3-4 and C5-6 without signs of myelopathy and a
herniated disc at L2-3 with right lumbar radiculopathy which remained stable since a previous
evaluation.
In a May 5, 2004 note, Dr. Rosanna Buigas, a Board-certified internist, opined that
appellant was disabled and that she could no longer perform any type of work. Her June 30,
2003 prescription note stated that appellant had gastroesophageal reflux disease (GERD).
Dr. Hernandez’s April 16, 2003 report stated that appellant sustained epigastric pain that
was most likely due to GERD.
In a February 4, 2002 report, Dr. Stanziola determined that appellant had a six percent
impairment of the whole person based on her right hip condition utilizing the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
His February 4, 2002 disability certificate provided the diagnoses of osteoarthritis of the left hip
and lumbar radiculitis and stated that appellant could return to work with no restrictions.
Dr. Stanziola’s September 30, 2002 disability certificate reiterated that appellant had
osteoarthritis of the left hip and stated that she could return to work with restrictions.
In a March 18, 2002 report, Dr. Henrys stated that appellant sustained herniated
discogenic disease with radiculopathy and frequent giving out of her leg which contributed to her
fall and resulted in a fracture of the right wrist. In a June 17, 2002 report, he opined that she was
status post Colles’ fracture of the right wrist with osteoarthrosis of the right hip, lumbosacral
spondylosis, cervical spondylosis, hypertensive cardiovascular disease by history and obesity.
Dr. Henrys opined that appellant’s maximum medical improvement of the cervical and
lumbosacral spine and permanent impairment had been determined since March 2000. He rated
a six percent impairment of the wrist which constituted a four percent impairment of the whole
person according to the A.M.A., Guides. Dr. Henrys recommended total hip replacement
arthroplasty due to osteoarthritis of her right hip. On January 10, 2005 he stated that appellant’s
work-related lumbosacral radiculitis and osteoarthritis of the right hip had not resolved.
In a December 18, 2004 report, Dr. David Gackstetter, a chiropractor, provided his x-ray
findings of appellant’s cervical and lumbar regions. A decrease in the disc space at C7 with
possible narrowing of the neurological opening was noted. A decrease in the normal posterior
disc space of L5 and S1 with subsequent narrowing of the opening of the neurological opening of
S1 was also noted. Dr. Gackstetter stated that advanced stages of disc degeneration were present
at the L1 and L2 levels. He noted that subluxations were present at C6, C7, T3, T7, T8, L4 and
L5. Dr. Gackstetter diagnosed cervical and lumbar intervertebral disc syndrome, cervical nerve

3

root compression syndrome, thoracic nerve compression, lumbar radiculitis, right hip injury with
degeneration and disc herniation at C3-4, C5-6 and L2-3. He opined that appellant was unable to
perform any of her work duties.
Manuel E. Alvarez, Ph.D., a clinical psychologist, stated in a February 26, 2004 report
that appellant sustained chronic pain disorder and adjustment disorder with mixed emotional
features on Axis I.
By decision dated January 27, 2005, the Office finalized the termination of appellant’s
wage-loss compensation benefits effective February 19, 2005. It found that appellant no longer
had disability causally related to her February 1998 employment-related injuries based on
Dr. Montane’s October 3, 2004 report. However, the Office did not terminate medical benefits.
In a January 27, 2005 report, Dr. Buigas stated that appellant continued to have severe
cervical and lumbosacral discogenic disease with radiculopathy, bilateral arm numbness and pain
and frequent leg pains following the February 11, 1998 employment injury. Her leg gave way on
March 2, 2002, which resulted in an impacted comminuted fracture of the right distal radius.
Dr. Buigas stated that appellant had been unable to return to work due to her injuries and that her
problems were chronic and ongoing.
On March 9, 2005 the Office received a February 17, 2005 letter in which, appellant,
through her representative, requested an oral hearing before an Office hearing representative. An
April 7, 2005 form report from a physician whose signature is illegible stated that appellant
sustained osteoarthritis of the right hip, lumbar and cervical radiculitis.
An August 22, 2005 magnetic resonance imaging (MRI) scan report from Dr. Abner M.
Landry, a Board-certified radiologist, noted significant bilateral foraminal compromise at C6-7
secondary to a combination of facet hypertrophy and bilateral foraminal disc bulges and
significant multilevel facet hypertrophy. An August 22, 2005 MRI scan of the thoracic spine
was normal and August 22, 2005 MRI scan of the lumbar showed no evidence of focal disc
herniation but mild multilevel facet hypertrophy was present.
In a December 5, 2005 report, Dr. Gustavo A. Torres, an orthopedic surgeon, stated that
appellant had cervical and lumbar degenerative disc disease. His December 2005 disability
certificate contained an illegible diagnosis and stated that appellant was disabled for work.
Progress notes dated December 16, 2005 from Carole Saint Phard and Carolyn Caldwell,
registered nurses, addressed appellant’s right wrist pain. On that date, Dr. Leon Adler, a
radiologist, obtained an x-ray of appellant’s right wrist which demonstrated degenerative
changes involving the distal interphalangeal joint of the fifth finger with findings especially at
the base of the distal phalanx. There was no evidence of fracture or dislocation.
At the April 25, 2006 hearing, appellant’s representative requested a review of the written
record.
In a March 17, 2006 disability certificate, Dr. Buigas indicated that appellant was
permanently disabled due to a herniated disc at C3-4 and C5-6 and L2-3, severe right hip
osteoarthritis, lumbar radiculitis and thoracic compressions.
4

An MRI scan of appellant’s lumbar spine was performed on March 10, 2005 by
Dr. Eric M. Godreau, a radiologist, who diagnosed muscle spasm, degenerative disc disease with
intervertebral disc bulges at L2-3, L3-4, L4-5 and L5-S1. A March 10, 2005 MRI scan of
appellant’s cervical spine demonstrated muscle spasm, posterocentral osteophyte formation and
disc herniation at C3-4 and intervertebral disc bulges at C4-5 and C5-6.
In a March 21, 2005 report, Dr. Jorge M. Cabrera, a Board-certified orthopedic surgeon,
noted that appellant suffered from frontal headaches, cervical sprain, right cervical radiculitis,
herniated disc at C3-4 with two bulging discs, lumbosacral sprain, lumbosacral degenerative disc
disease, bilateral lumbar radiculitis and right hip arthritis. Dr. Cabrera ruled out osteoporosis and
stated that she was status post right wrist fracture.
In a February 6, 2006 report, Dr. David E. Font-Rodriguez, a Board-certified orthopedic
surgeon, stated that appellant had a healed right distal radius fracture malunion with resultant
ulnocarpal abutment.
By decision dated June 28, 2006, an Office hearing representative affirmed the
January 27, 2005 decision. The hearing representative found that the weight of the medical
opinion evidence was represented by Dr. Montane’s October 3, 2004 report which established
that appellant no longer had any disability causally related to her February 11, 1998
employment-related injuries.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2 It
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.3 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4
ANALYSIS -- ISSUE 1
In a report dated October 3, 2004, Dr. Montane, a second opinion Office referral
physician, reviewed the evidence of record to determine the extent and degree of appellant’s
employment-related conditions and disability. He reported normal findings upon physical,
neurological and x-ray examination. Dr. Montane diagnosed cervical and lumbar radiculitis,
arthritis of the right hip and possibly a sprained hip. He noted that the cervical and lumbar
radiculitis were related to the accepted employment injuries but that they would have resolved
within three months after the February 11, 1998 employment injury. Dr. Montane stated that
appellant’s arthritis was not related to her employment injury but instead to aging, obesity and a
2

See Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005); see also Beverly Grimes,
54 ECAB 543 (2003).
3

Id.

4

James M. Frasher, 53 ECAB 794 (2002).

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genetic predisposition to developing the condition. Dr. Montane opined that appellant did not
have any residuals of her employment-related conditions. He explained that her subjective
complaints did not correspond with any objective findings that she had a normal physical and
neurological examination and her x-ray results were consistent with a 60-year-old woman.
Dr. Montane further opined that appellant was capable of working full time with no restrictions
and she did not require any further treatment for her work-related injuries.
The Board finds that Dr. Montane’s report is detailed, well rationalized and based upon a
complete and accurate history. His opinion represents the weight of the medical evidence in
finding that appellant no longer has any disability causally related to her employment-related
abrasion to the face, cervical, lumbar and right hip strains and cervical disc herniation. The
Board, therefore, finds that the Office met its burden of proof in this case.
The medical evidence submitted by appellant in response to the Office’s proposed notice
of termination is insufficient to overcome the weight accorded to Dr. Montane’s report.
Dr. Stanziola stated that appellant sustained cervical and lumbar radiculitis and osteoarthritis of
the right and left hip. He estimated a six percent impairment of the whole person regarding her
right hip based on the A.M.A., Guides. Dr. Stanziola’s disability certificate indicated that
appellant suffered from osteoarthritis of the left hip and lumbar radiculitis. He stated that
appellant could return to work with no restrictions. In his September 30, 2002 disability
certificate, Dr. Stanziola reiterated his diagnosis of osteoarthritis of the left hip and opined that
she could return to work with restrictions. He failed to adequately explain how appellant’s
diagnosed conditions and disability were due to the February 11, 1998 employment injury.
Dr. Hernandez found that appellant sustained epigastric pain that was most likely due to
GERD and his May 2, 2003 operative report stated that appellant sustained Grade 2 reflux
esophagitis, a hiatal hernia, a schatzki ring and erosive gastritis. His report failed to address
whether these diagnosed conditions and disability were causally related to the accepted
employment injury.
On June 20, 2001 Dr. Joy opined that appellant sustained herniated nucleus pulposus at
C3-4 and C5-6 without signs of myelopathy and herniated nucleus pulposus at L2-3 with right
lumbar radiculopathy which remained stable since a previous evaluation. Dr. Henrys’ March 18,
2002 report stated that appellant suffered from herniated discogenic disease with radiculopathy
and frequent giving out of her leg which contributed to her fall and resulted in a fractured right
wrist. In a June 17, 2002 report, he opined that appellant was status post Colles’ fracture of the
right wrist and she had osteoarthrosis of the right hip, lumbosacral spondylosis, cervical
spondylosis, hypertensive cardiovascular disease by history and obesity. Dr. Henrys determined
that she had a six percent impairment of the upper extremity which constituted a four percent
impairment of the whole person based on the A.M.A., Guides. He recommended total hip
replacement arthroplasty due to osteoarthritis of her right hip. Dr. Alvarez’s February 26, 2004
report found that appellant suffered from chronic pain disorder and adjustment disorder with
mixed emotional features on Axis I. The reports of Drs. Joy, Henrys and Alvarez failed to
address whether appellant’s diagnosed condition and permanent impairment were caused by the
accepted employment-related injuries. These reports addressed conditions not accepted by the
Office as employment related. Their probative value is further reduced and insufficient to
support appellant’s claims for continuing employment-related disability.

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In a January 10, 2005 report, Dr. Henrys opined that appellant’s work-related
lumbosacral radiculitis and osteoarthritis of the right hip had not resolved. The Board notes that
the Office has not accepted appellant’s claim for these medical conditions and the burden of
proof is on her to establish causal relationship. Dr. Henrys failed to provide sufficient medical
rationale in support of his opinion on causal relation.
Dr. Buigas stated that appellant was disabled from performing any type of work. Her
June 30, 2003 prescription note stated that appellant had GERD. However, he failed to provide
any medical rationale explaining how or why appellant’s disability and GERD were caused by
the February 11, 1998 employment-related injury.
Dr. Gackstetter, a chiropractor, diagnosed cervical and lumbar intervertebral disc
syndrome, cervical nerve root compression syndrome, thoracic nerve compression, lumbar
radiculitis, right hip injury with degeneration and disc herniation at C3-4, C5-6 and L2-3. He
also diagnosed subluxation at C6, C7, T3, T7, T8, L4 and L5 as demonstrated by x-ray.
Dr. Gackstetter opined that appellant was unable to perform any of her job duties. As he
diagnosed subluxation as demonstrated by x-ray, Dr. Gackstetter is a physician under the Federal
Employees’ Compensation Act.5 However, he failed to provide medical rationale explaining
how or why appellant’s diagnosed conditions and resultant disability were caused by the
accepted employment-related injury.
The unsigned report dated June 2001 has no probative value because it is not signed by a
physician.6 As the report lacks proper identification, the Board finds that it does not constitute
probative medical evidence sufficient to establish that appellant has any continuing employmentrelated residuals and disability.7
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating benefits shifts to appellant.8 In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that she
had an employment-related disability, which continued after termination of compensation
benefits.

5

5 U.S.C. § 8101(2). Section 8101(2) of the Act provides as follows: (2) physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. The term physician includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary. See Merton J. Sills, 39
ECAB 572, 575 (1988).
6

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

7

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, supra note 5 (reports not signed by a physician lack
probative value).
8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).

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The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
diagnosed condition and the implicated employment relationship between appellant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background of appellant, 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 appellant.9
ANALYSIS -- ISSUE 2
Subsequent to the Office’s termination of benefits, appellant submitted medical evidence,
including Dr. Buigas’ January 27, 2005 report. Dr. Buigas stated that appellant continued to
have severe cervical and lumbosacral discogenic disease with radiculopathy, bilateral arm
numbness and pain and frequent leg pains following the February 11, 1998 employment injuries.
She opined that, since appellant’s problems were chronic and ongoing, appellant was entitled to
disability. Dr. Buigas, however, did not provide any medical rationale explaining how or why
appellant’s diagnosed conditions and resultant disability were causally related to her accepted
employment injuries.
In a March 17, 2006 disability certificate, Dr. Buigas opined that appellant was
permanently disabled due to a herniated disc at C3-4 and C5-6 and L2-3, severe right hip
osteoarthritis, lumbar radiculitis and thoracic compressions. She did not address whether
appellant’s disability and medical conditions were caused by the February 11, 1998 employment
injuries.
In a December 5, 2005 report, Dr. Torres stated that appellant sustained cervical and
lumbar degenerative disc disease. His December 2005 disability certificate contained an
illegible diagnosis and stated that appellant was disabled for work. Dr. Torres failed to
adequately explain how these diagnosed conditions and disability were caused by the accepted
employment injury.
In a March 21, 2005 report, Dr. Cabrera opined that appellant experienced frontal
headaches, cervical sprain, right cervical radiculitis, herniated disc at C3-4 with two bulging
discs, lumbosacral sprain, lumbosacral degenerative disc disease, bilateral lumbar radiculitis and
right hip arthritis and that she was status post right wrist fracture. Dr. Font-Rodriguez’s
February 6, 2006 report stated that appellant had a healed right distal radius fracture malunion
with resultant ulnocarpal abutment. Neither Dr. Cabrera nor Dr. Font-Rodriguez addressed
whether appellant’s diagnosed conditions were caused by the February 11, 1998 employmentrelated injuries.

9

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

8

The progress notes of Ms. Saint Phard and Ms. Caldwell, registered nurses, do not
constitute probative medical evidence as a registered nurse is not considered to be a physician
under the Act.10
Appellant did not submit sufficient rationalized medical evidence establishing that she
has continuing disability causally related to her accepted abrasion to the face, cervical, lumbar
and right hip strains and cervical disc herniation. She has not met her burden of proof.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
February 19, 2005 on the grounds that she no longer had any residuals or disability causally
related to her employment-related abrasion to the face, cervical, lumbar and right hip strains and
cervical disc herniation. The Board further finds that appellant has failed to establish that she
had any continuing employment-related disability after February 19, 2005 causally related to the
February 11, 1998 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2007
Washington, DC

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

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

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

10

5 U.S.C. § 8101(2); see Sheila A. Johnson, 46 ECAB 323 (1994).

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY, ANISTON
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ARMY DEPOT, Aniston, AL, Employer
)
___________________________________________ )
T.P., Appellant

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

Docket No. 08-2052
Issued: May 1, 2009

Case submitted on the record

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

JURISDICTION
On July 21, 2008 appellant’s representative filed a timely appeal from a decision of the
May 5, 2008 Office of Workers’ Compensation Programs denying a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant sustained permanent impairment caused by his accepted
employment injuries that would entitle him to a schedule award.
FACTUAL HISTORY
On June 12, 2006 appellant, then a 42-year-old general equipment mechanic helper, filed
a traumatic injury claim alleging that on June 8, 2006 he injured of his back and right hip while

1

The record also contains a January 22, 2008 decision, which denied appellant’s claim for compensation
beginning June 30, 2006. Appellant has not appealed this decision.

working under a vehicle in the performance of duty. He did not stop work.2 On October 17,
2006 the Office accepted appellant’s claim for a lumbar strain and herniated nucleus pulposus
and paid compensation benefits.
On November 26, 2007 appellant filed a claim for a schedule award.
By letter dated December 28, 2007, the Office requested that appellant’s treating
physician, Dr. Paul Muratta, an osteopath and Board-certified anesthesiologist, provide an
evaluation of permanent impairment. It advised Dr. Muratta to utilize the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides)
(5th ed. 2001).
In a February 13, 2008 report, Dr. Muratta noted that appellant had tenderness in the
lumbar spine, pain with flexion and extension and negative straight leg raising. He found that
appellant’s motor strength in the quadriceps, hamstrings, anterior tibia and gastrocnemius was a
“5/5 bilaterally.” Dr. Muratta diagnosed lumbar herniated disc, insomnia secondary to chronic
pain and depression secondary to chronic pain. He also requested authorization for a series of
nerve root blocks.
In a February 26, 2008 report, Dr. Michael K. Morris, an osteopath and physiatrist,
reviewed appellant’s history of injury and treatment, stating that he had no history of lumbar
spine surgery. He advised that diagnostic testing revealed degenerative changes with disc
bulging at L4-5 as well as a disc herniation at L5-S1 with no impingement on exiting nerve roots.
Dr. Morris found that appellant did not have any muscular atrophy in either lower limb, although
he had pain with limited strength at both lower limbs and decreased sensation to the right knee
and proximal to the right ankle. He referred to section 15.4 and advised that appellant’s
condition corresponded to the “DRE lumbar category III which correlates to a 10 percent whole
person impairment.”3 In a March 12, 2008 report, Dr. Morris noted that appellant had some
tenderness in the upper buttock area and “good sensation to his lower extremities.” He
diagnosed cervical spine disease, lumbar spine disease and recommended water therapy and
medications for appellant.
In a report dated April 24, 2008, the Office medical adviser reviewed appellant’s history
of injury and treatment. He agreed that appellant had degenerative lumbar disc disease at L4-5
and L5-S1 and received nonsurgical treatment. The Office medical adviser indicated that
diagnostic testing revealed no motor or sensory impairment to the lower extremities related to
nerve root innervation. He noted that the Office’s procedures did not provide for impairment of
the spine or whole person impairment. The Office medical adviser opined that there was no
objective evidence of record to support any impairment to the lower extremities and that
appellant reached maximum medical improvement on February 26, 2008.

2

Appellant was terminated for misconduct on October 5, 2006, during his probationary period.

3

A.M.A., Guides 384-388.

2

On May 5, 2008 the Office denied appellant’s claim for a schedule award. It found that
the medical evidence of record did not support a permanent impairment to a scheduled member
or function of the body.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.6 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.9 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
ANALYSIS
The evidence of record is insufficient to establish that appellant sustained permanent
impairment warranting schedule award.
The Office accepted appellant’s claim for a lumbar strain and herniated disc. Appellant
claimed a schedule award and submitted a February 26, 2008 report from Dr. Morris who
referred to Chapter 15 of the A.M.A., Guides at section 15.4 to find that his condition
corresponded to the “DRE lumbar category III which correlates to a 10 percent whole person
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8107.

6

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

20 C.F.R. § 10.404.

8

Thomas J. Engelhart, 50 ECAB 319 (1999).

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, supra note 8.

3

impairment.” The Board notes that this chapter deals with impairments of the spine. As noted,
neither the Act, nor the implementing federal regulations provide for the payment of a schedule
award for the permanent loss of use of the back or the body as a whole. A claimant is not
entitled to such a schedule award.11 The Board notes that section 8101(20) specifically excludes
the back from the definition of organ.12 A claimant may be entitled to a schedule award for
permanent impairment to an upper or lower extremity even though the cause of the impairment
originates in the spine. However, appellant did not submit sufficient medical evidence to support
any impairment to either lower extremity causally related to the accepted low back conditions.13
The Office medical adviser reviewed the report of Dr. Morris and noted that Office
policies do not provide for schedule awards for impairments of the spine or whole person.14 He
found there was no medical evidence to support impairment to the lower extremities. Appellant
did not submit any other medical evidence to support that he sustained impairment of a schedule
member of the body under the Act. Accordingly, the Board finds that appellant has not
established entitlement to a schedule award.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
entitled to a schedule award.15

11

See supra note 5; see also Richard R. Lemay, 56 ECAB 341 (2006).

12

5 U.S.C. § 8101(20).

13

See Richard R. Lemay, supra note 11; see also Thomas J. Engelhart, supra note 8.

14

See supra note 11.

15

Following issuance of the Office’s May 5, 2008 decision, appellant submitted additional evidence to the Office.
However, the Board may not consider such evidence for the first time on appeal as its review is limited to the
evidence that was before the Office at the time of its decision. See 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2008 is affirmed.
Issued: May 1, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bedford, MA, Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1057
Issued: May 11, 2017

Case Submitted on the Record

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

JURISDICTION
On March 8, 2016 appellant, through counsel, filed a timely appeal from a February 8,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury on
May 8, 2014 in the performance of his federal employment duties.
FACTUAL HISTORY
On October 20, 2014 appellant, then a 46-year-old administrative investigator, filed a
traumatic injury claim (Form CA-1) alleging that on May 8, 2014 he sustained post-traumatic
stress, anxiety, hypervigilance, depression, anger, fear, and sleeplessness in the performance of
duty. He indicated that he was conducting surveillance as part of his investigation of a workers’
compensation claimant when he witnessed and recorded a drug transaction. The subjects of the
drug transaction later threatened to kill him. Appellant stopped work on October 20, 2014.3
In a May 8, 2014 e-mail to an investigator for the employing establishment, appellant
noted that, while performing surveillance, he followed a claimant’s vehicle to a parking lot and
noticed two people shooting up drugs in a vehicle next to him. He began to videotape them and
called the local police department. Appellant noted that at the same time that the drug users
departed the area, he observed the claimant driving in the same direction. He followed the
claimant and observed the drug users pull into a driveway. Appellant notified the local police
department of the new information. He explained that he was unable to locate the claimant so he
returned to his surveillance position in the parking lot. Appellant observed a sport utility vehicle
(SUV) parked in the same area where he observed the drug users and noticed that its two
occupants were staring at his vehicle. A few minutes later a second vehicle pulled up next to the
SUV and the driver pointed at appellant’s vehicle. Appellant reported that the second vehicle
slowly drove up next to appellant’s vehicle and the driver yelled that he was going to kill
appellant. He further noted that when the local police department contacted him, they informed
him that he was in an area known for drug activity. Appellant stated “given those events and the
position I was put in with this … NARC-looking vehicle and what I just witnessed…. I bailed
out of the area, fearing for my life.” He mentioned that he sat in his vehicle shaking and
sweating and “staring at every vehicle … and wondering if they’re looking for me.”
Appellant also sent an e-mail dated May 8, 2014 to his supervisor. He stated “became
sick to my stomach, scared to death, and afraid for my life.” Appellant indicated that he left
work an hour early and was very nervous and afraid that someone was following or chasing after
him.
Appellant provided several other e-mails between himself and his supervisor regarding
several occasions when he went to the emergency room because of severe pain in his lower and
upper back, which he believed was caused by stress from work. He requested time off work and
wage-loss compensation for his medical treatment.
Dr. Justin M. Hill, a neuropsychologist, treated appellant and related in narrative reports
dated September 22 and November 19, 2014 that appellant experienced multiple symptoms
3

On October 22, 2014 OWCP offered appellant a light-duty assignment as a workers’ compensation specialist.
In a letter dated November 11, 2014, appellant declined the assignment.

2

consistent with a diagnosis of Adjustment Disorder with Anxiety and Depression. He noted that
appellant complained of chronic pain with regard to his symptoms of anxiety and depression.
Dr. Hill indicated that appellant had a particularly difficult time in the military and that these
memories continued to negatively impact his mood and other areas of life. He reported that
appellant’s current job as a workers’ compensation investigator created a significant amount of
stress for him and negatively impacted other areas of his life. Dr. Hill further stated: “It is likely
very difficult to consistently perform at a high level at your job given the very nature of what you
do while you continue to suffer from significant mental health and medical issues.”
In a letter dated October 29, 2014, OWCP advised appellant that the evidence of record
was insufficient to establish his claim. It requested additional evidence to demonstrate that he
actually experienced the May 8, 2014 employment incident, that the alleged injury occurred in
the performance of duty, and that he sustained a diagnosed psychological condition as a result of
the employment incident. A similar letter was sent to the employing establishment. Appellant
was afforded 30 days to submit the additional evidence.
In a November 11, 2014 statement, appellant reiterated that on May 8, 2014 he was inside
his government vehicle, which had confidential license plates and heavily tinted windows, and
conducting discreet surveillance on a workers’ compensation claimant. He asserted that his
government vehicle stood out in the area and he noticed many long stares and comments as
people walked by the vehicle. While appellant was in a parking lot conducting surveillance, he
observed that two people in another vehicle were shooting up drugs. He started to videotape the
illegal activity and called the local police department. Appellant explained that at the same time
that the drug users left the area he thought he observed the claimant leaving the area in the same
direction. He followed the claimant and observed the drug users pull into a driveway. Appellant
called the local police department to inform them of the new location. When he was unable to
locate the subject of his investigation he returned to his surveillance viewpoint in the vacant
parking lot. While waiting in his vehicle appellant observed an SUV parked in the same area and
noticed that the two occupants were staring at him. He related that a few minutes later another
vehicle pulled up alongside the original vehicle and the driver pointed to appellant’s vehicle.
Appellant noted that the vehicles drove by his car and yelled out death threats.
Appellant explained that he became very nervous, paranoid, and feared for his life
because he got himself mixed up with a drug dealer or something. He further noted that the
nature of his employment required him to be discreet, confidential, and anonymous. Appellant
alleged that seven years of this type of work had made him an emotional mess and a very
disabled employee. He indicated that he had provided numerous notifications to his supervisor,
but the traumatic event on May 8, 2014 was one of the primers in which he realized that he was
no longer capable of performing the duties of an investigator. Appellant asserted that he suffered
immensely from this incident and that it aggravated more psychological issues. He explained
that he suffered from post-traumatic stress disorder (PTSD), depression, anxiety, and other
psychological-related issues while on active duty in the Army, but that this incident caused him
the worst type of pain. Appellant reported that his delay in filing the emotional condition claim
was due to his confidential position as an investigator and in knowing how filing his claim would
affect his job, life, and health. He noted that after the May 8, 2014 life-threatening incident he
had a nervous breakdown and became ill over the incident. Appellant reported that he could no
longer take the stress of having his life threatened, challenged, or not knowing who could be

3

trusted. He indicated that there were no witnesses to the incident, but his supervisor was aware
of similar incidents when his life had been threatened or when he was placed in similar life
threatening situations. Appellant asserted that since May 8, 2014 he has been unable to function
normally and that he suffered from out of control fear and hypervigilance that did not allow for
him to function normally.
The employing establishment controverted the claim by letter dated November 19, 2014.
She contended that on May 8, 2014 appellant had deviated from his employment duties when he
videotaped illegal drug activity while conducting surveillance on a claimant. The workers’
compensation program specialist asserted that appellant decided on his own to continue to
observe the illegal activity when he was conducting surveillance and to record the activity even
though it did not involve the subject of his workers’ compensation surveillance.
In a November 29, 2014 statement, appellant related that it was “beyond embarrassing”
to go to anyone about filing a workers’ compensation claim and to be a workers’ compensation
investigator filing a claim. This had always plagued him since his first injury on the job. He
noted that he would have to speak to various employees who were past targets of his
investigation, which caused major anxiety attacks and major depression. Appellant further
explained that the May 8, 2014 incident triggered his emotional condition and that he had been
unable to function normally since that incident. He indicated that he now suffered from out of
control fear and hypervigilance and that everyone in the city looked suspicious to him.
Appellant also described an incident which occurred about one week after the May 8, 2014
incident when someone spray painted a large penis on the drivers’ side of his government
window. He included pictures of the painting. Appellant noted that he was diagnosed with
PTSD in 2000 after serving in the Army and related that many factors caused him severe and
debilitating flare-ups and bouts of depression.
The employing establishment reiterated in a December 22, 2014 letter that the May 8,
2014 injury did not occur in the performance of duty. She clarified that investigators were
advised not to take any action if they saw illegal activity taking place. When appellant witnessed
illegal activity on May 8, 2014 and started to record the activity, this action broke the scope of
his employment and was a deviation from his assigned duties. It noted that appellant continued
to stay in the area and watch the illegal activity even though the subject of his surveillance was
no longer present.
Appellant received treatment from Dr. J. Michael O’Connell, Board-certified in
emergency medicine, who noted in a December 8, 2014 record that he had treated appellant for
management of chronic medical issues, most noticeably, for anxiety around his employing
agency due to his job as a workers’ compensation investigator. Dr. O’Connell related that
appellant felt threatened when he was a patient and when he had to interact with employees
whom he had investigated in the past. He reviewed appellant’s history and diagnosed radicular
pain, essential hypertension, indigestion, low back pain, obesity, osteoarthritis of the knee,
shoulder pain, adjustment disorder with mixed anxiety and depressed mood, depression, chronic
PTSD, and major depressive disorder, and sleep apnea.
In a January 28, 2015 statement, appellant related that on October 20, 2014 he filed an
occupational disease claim for a lumbar condition that originated on or around August 14, 2012.

4

He noted that this letter would contain numerous medical and psychological records from the
Department of Veterans Affairs pertaining to his back and other conditions. Appellant explained
that he filed the claim after years of worsening medical issues to his back and knee and
psychological issues, including stress, anxiety, depression, and PTSD. He noted that beginning
in August 2007 he began to work as a workers’ compensation investigator and that this position
required him to remain seated for extended periods of time in a vehicle while conducting covert
surveillance. Appellant asserted that the vehicles were widely known as government vehicle
makes and models and were not equipped for “blending in.” He described the physical
requirements of his job to conduct surveillance and alleged that these activities caused significant
pain in his lower and upper back.
Appellant submitted various progress notes dated August 14, 2013 to December 8, 2014
regarding treatment for lumbar symptom, depression, and anxiety.
OWCP denied appellant’s emotional condition claim in a decision dated March 20, 2015.
It found that the factual and medical evidence of record was insufficient to establish an injury on
May 8, 2014 while in the performance of duty. OWCP stated that appellant deviated from his
normal and assigned duties when he videotaped illegal drug activity because the illegal activity
was not relevant to the assigned surveillance of the subject of appellant’s investigation.
On April 13, 2015 OWCP received appellant’s request for a hearing before an OWCP
hearing representative which was held on October 30, 2015. Appellant alleged that OWCP’s
conclusion that the May 8, 2014 incident did not occur in the performance of duty had no factual
support. He explained that his work involved more than simply taking pictures of the subject of
the investigation and that he also took pictures of background information such as a subject’s
neighborhood, home, vehicle, and other features related to the subject. Appellant asserted that
all observations were relevant to his investigations and were used in the investigative process
either immediately or for future events. Thus, he alleged that he was still performing the
essential functions of his position at the time of the May 8, 2014 incident. Appellant also noted
that his job required him to be in that location on that day and that he was still performing his
duties of conducting surveillance when he videotaped the illegal activity. He stated that he was
sitting in the parking lot because a vehicle that matched the subject’s vehicle came into view.
Appellant noted that he was documenting that vehicle and the environment as part of his
investigation. He further noted that the death threats were made while he was sitting in a
government-owned vehicle, and not while he was videotaping the illegal activity. Appellant also
discussed his history of PTSD from his military service and described his anxiety, feelings of
helplessness, and stress that he experienced after the May 8, 2014 incident and the treatment he
received.
In a November 25, 2015 letter, counsel described in detail the May 8, 2014 incident. He
related that appellant filed a claim for traumatic injury alleging that the described events,
specifically the threat against his life, caused him to suffer an emotional condition. Counsel
asserted that OWCP’s decision was based on conjecture that the drug users were aware that
appellant was videotaping them and that is why they threatened to kill appellant. He alleged that
the drug users noticed appellant because he was in a government vehicle with heavily tinted
windows and not because he was videotaping the illegal activity. Counsel argued that appellant

5

was performing his normal duties as an investigator and did not deviate from any of those duties
on May 8, 2014.
On December 28, 2015 OWCP received the employing establishment’s response to the
hearing testimony. The employing establishment reiterated that appellant deviated from his
assigned duties as an investigator on May 8, 2014, thereby taking himself out of the performance
of duty. It disagreed with appellant’s contention that the government-issued vehicle used on
May 8, 2014 stood out. The employing establishment explained that although appellant often
took pictures of the environment surrounding the subject of the investigation, he took pictures of
identifying locations, such as street intersections and house numbers, in order to verify that
appellant was in the location that he claimed to be. Appellant had never photographed illegal
activity. The employing establishment asserted that appellant would not have lost sight of the
subject of his surveillance if he had not been videotaping the illegal activity. It also noted
several discrepancies in his testimony, e-mails, and narrative statements regarding the events on
May 8, 2014. The employing establishment noted that in appellant’s initial statement he
indicated that he moved to the parking lot because he wanted a more discreet surveillance
position, but in his e-mail to the investigator appellant explained that he followed the claimant to
the parking lot. It further asserted that appellant initially claimed that he observed the claimant
in the parking lot but in his hearing testimony he indicated that he could not clearly identify
whether the claimant was in his vehicle. The employing establishment noted that the evidence
was unclear regarding why appellant was in the vacant parking lot, where the drug users were
parked when he witnessed the illegal activity, and for how long he remained in the parking lot
after the described incident.
By decision dated February 8, 2016, an OWCP hearing representative affirmed the
March 20, 2015 denial decision. He determined that appellant had failed to establish that the
alleged May 8, 2014 employment injury occurred in the performance of duty. The hearing
representative noted that appellant deviated from his course of employment when he
intentionally videotaped illegal activity and abandoned the surveillance activity that was his
actual work assignment.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.5
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in his master’s business, at a place when he may
reasonably be expected to be in connection with his employment and while he was reasonably

4

5 U.S.C. § 8102(a).

5

See Valerie C. Boward, 50 ECAB 126 (1998).

6

fulfilling the duties of his employment or engaged in doing something incidental thereto.6 In
deciding whether an injury is covered by FECA, the test is whether, under all the circumstances a
causal relationship exists between the employment itself or the conditions under which it is
required to be performed and the resultant injury.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment.8 There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation.9 In the case of Lillian Cutler,10 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. Where the employee experiences emotional stress in carrying
out his duties, or has fear and anxiety regarding his ability to carry out his duties, and the medical
evidence establishes that the disability resulted from his emotional reaction to such situation, the
disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability resulted from his emotional reaction to
his day-to-day duties. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to a special assignment or requirement imposed by the employing
establishment or by the nature of the work.11
On the other hand, when a disability results from an employee’s feelings of job insecurity
per se, fear of a reduction-in-force or frustration from not being permitted to work in a particular
environment or hold a particular position, unhappiness with doing work, or frustration in not
given the work desired or hold a particular position, such disability falls outside FECA’s
coverage because they are found not to have arisen out of employment.12 The only requirements
of employment which will bring a claim within the scope of coverage under FECA are those that
relate to the duties the employee is hired to perform.13
The Board has recognized the compensability of verbal threats and abuse in certain
circumstances.14 This does not imply, however, that every statement uttered in the workplace
will give rise to coverage under FECA.15 To be considered compensable under FECA, there
6

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
Eugene G. Chin, 39 ECAB 598 (1988).
7

See Mark Love, 52 ECAB 490 (2001).

8

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

9

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

10

28 ECAB 125 (1976).

11

Id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

12

William E. Seare, 47 ECAB 663 (1996).

13

See Anthony A. Zarcone, 44 ECAB 751 (1993).

14

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 666,669-70 (1991).

15

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783 (1991).

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must be evidence that the alleged verbal altercation occurred and rose to the level of verbal abuse
or otherwise fall within coverage of FECA.16 The Board finds that the emotional reaction to the
behavior must be considered self-generated in that it resulted from his perceptions regarding the
alleged third parties.17
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
compensable factors of employment and may not be considered.18 If a claimant does implicate a
factor of employment, OWCP should then consider whether the evidence of record substantiates
that factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim. The claim must be supported by probative evidence.19
ANALYSIS
Appellant has alleged that he experienced post-traumatic stress, anxiety, hypervigilance,
depression, anger, fear for his life, and sleeplessness as a result of a May 8, 2014 employment
incident. OWCP denied appellant’s claim finding that he failed to establish that his alleged work
injury occurred in the performance of duty. As a preliminary matter, the Board must review
whether the alleged incident is a covered employment factor under FECA.20
Appellant has alleged that he feared for his life and became extremely nervous on May 8,
2014 while conducting surveillance on a subject as part of his duties as an administrative
investigator. He noticed that in the vehicle next to him two people were shooting up drugs.
Appellant began to videotape the criminal activity and called the police. He then observed that
the subject of his surveillance departed the area so he followed the subject. Appellant explained
that he was unable to locate the subject of his surveillance so he returned to his initial
surveillance position in the parking lot. He asserted that while he was in his “NARC looking”
vehicle he noticed two passengers in an SUV looking at him. Appellant alleged that another
vehicle then drove up next to his vehicle and the driver yelled that he was going to kill appellant.
He related that when the local police department later contacted him, they informed him that the
area where he was performing surveillance was known for drug activity. Appellant alleged that
he became very nervous, paranoid, and feared for his life that he had become involved with a
drug dealer or criminal.

16

Harriet J. Landry, 47 ECAB 543, 547 (1996); see Leroy Thomas, III, supra note 14.

17

See David S. Lee, 56 ECAB 602 (2005).

18

See Dennis J. Balogh, 52 ECAB 232 (2001).

19

See Charles E. McAndrews, 55 ECAB 711 (2004).

20

Id.

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In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.21
In P.B.,22 the Board determined that the claimant had deviated from his mail delivery
when he got out of his mail truck to chase and attempt to catch an assailant who threw gasoline
on him. The injuries he sustained while attempting to capture the assailant were found to have
been outside the performance of duty. OWCP had accepted as a compensable factor that the
claimant sustained injuries in the performance of duty when the assailant threw gasoline on the
claimant while the claimant was delivering mail. The Board distinguished, however, that
following the accepted gasoline attack incident, the claimant stopped work and deviated from his
mail delivery duty to attend to a purely personal matter of chasing the assailant.
In L.F.,23 OWCP denied the claim because he left his work location prior to the end of his
tour of duty, thereby removing himself from the performance of duty. The mere fact that a
claimant was on the premises at the time of injury is not sufficient to establish entitlement to
compensation benefits. It must also be established that he or she was engaged in activities which
may be described as incidental to his or her employment, i.e., that he or she was engaged in
activities which fulfilled or were incidental to his or her employment duties or responsibilities
thereto. The Board further explained that in B.I.,24 the employee was robbed at gunpoint during
his work tour while walking on the premises of the employing establishment’s parking garage.
However the employee was found not to be in the performance of duty as he had not submitted
any evidence establishing that he was engaged in any duty reasonably incidental to his
employment at the time of the robbery. The Board further found that appellant had departed his
workstation for unknown reasons and without authorization at the time of the robbery.25
Likewise, in this case the evidence of record supports that appellant was acting in the
performance of duty when he initially conducted surveillance of a subject in the parking lot, but
he deviated from the course of his employment when he returned to the parking lot after he
stopped conducting surveillance on the subject. He has stated that he followed the subject of the
21

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

22

Docket No. 13-1092 (issued June 19, 2014).

23

Docket No. 13-1804 (issued January 10, 2014).

24

Docket No. 12-1060 (issued January 11, 2013).

25

See also W.F., Docket No. 14-15 (issued June 4, 2014). The Board determined that the claimant’s actions
constituted a personal deviation from the normal activities incidental to his employment and authorized travel when
he rebooked his June 13, 2012 flight to June 15, 2012. The Board noted that although appellant was under orders to
travel to work, he did not provide a valid explanation for why he rebooked his June 13, 2012 flight for June 15,
2012, and therefore, failed to establish that he was engaged in authorized incidental activity at the time of the alleged
June 15, 2012 injury.

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surveillance out of the parking lot, but returned to the parking lot when he was unable to locate
the subject of his surveillance. Appellant has not provided any reason for returning to the
parking lot or any explanation as to why he needed to return to the parking lot in furtherance of
his employment duties after he had lost track of his target. He was no longer conducting
surveillance on the subject of his investigation and has provided no evidence to show that he was
engaged in activity that was reasonably incidental to his duties as an investigator when he was
sitting in his vehicle in the parking lot after the surveillance ceased. Because returning to the
parking lot constituted a deviation from his employment duties, the death threats he allegedly
received and the information from the local police department that he was in a high crime
activity area did not arise in the course of his employment as an investigator.
In Katina D. Edwards,26 the Board found that the claimant’s April 17, 2000 injury did not
occur in the performance of duty because the claimant had deviated from her employment for
personal reasons. The claimant’s trip was found to be a “personal mission, rather than an activity
incident to her employment and placed her, at the time of the accident, at a place where she
would not reasonably be expected to be in connection with her employment.”
Like the claimants in P.B. and Edwards, appellant was performing his employment duties
on May 8, 2014, but he deviated from his employment when he returned to the parking lot. The
Board finds, therefore, that when appellant later returned to the parking lot after the surveillance
on the subject ceased, he engaged in activities that were not incidental to or reasonably expected
by the employing establishment and thus removed himself from coverage under FECA.27
Accordingly, the conditions he attributed to those events did not occur in the performance of
duty.
Appellant has also alleged an emotional condition due to performing this type of work for
seven years. He has related that his work as an investigator was a source of significant stress for
him and negatively impacted his life. Appellant has explained that he could not handle the stress
of having his life threatened, challenged, or not knowing who could be trusted, and that the
May 8, 2014 incident showed him that he was no longer capable of performing the duties of an
investigator.
On appeal, counsel contends that OWCP’s decision was based on the assumption that
appellant would not have been threatened if the subjects did not know that they were being
videotaped. He alleged that there was nothing in the record to support that this was the case and
asserted that appellant was at all times performing his normal duties as an investigator when the
death threats were made against him. As explained above, however, appellant deviated from his
employment duties and was no longer in the performance of duty when he returned to the
parking lot after losing contact with the target. Accordingly, any injuries he claimed that
resulted from the individuals threatening him on May 8, 2014 were a result of his personal
actions, and not his duties as an investigator. For this reason, appellant has failed to establish a
compensable factor of employment for his emotional condition claim.
26

Docket No. 02-64 (issued September 16, 2002). It noted that it was the claimant’s personal preference to travel
to a more distant restaurant from her route for lunch.
27

See J.P., Docket No. 12-145 (issued March 25, 2013).

10

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury on May 8, 2014 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2016 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: May 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Denver, CO, Employer
__________________________________________

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

Docket No. 10-1917
Issued: June 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from a July 1, 2010 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On June 2, 2009 appellant, then a 40-year-old claims examiner, filed an occupational
disease claim (Form CA-2) alleging that he sustained an aggravation of post-traumatic stress
disorder (PTSD), nightmares, panic attacks and poor sleep causally related to his federal
1

5 U.S.C. § 8101 et seq.

employment. On the claim form appellant stated that over the prior eight years he had been
exposed to medical reports and after reviewing these documents he would get anxious.
In a letter dated June 16, 2009, an employing establishment supervisor stated that, from
October 2004 to July 2006, appellant worked in the Initial Adjudication Unit and handled the
adjudication of all types of claims, including stress claims. According to the supervisor, as of
October 2008, appellant did not review stress claims. The supervisor stated that he had been
placed on a performance improvement plan (PIP) in July 2004 and was told in March 2009 he
would again be placed on a PIP. The supervisor opined that appellant filed the claim because of
his impending PIP.
By decision dated July 31, 2009, the Office denied the claim for compensation. It found
that the file did not contain a detailed factual statement or probative medical evidence.
Appellant requested reconsideration of his claim by letter dated September 23, 2009. In
an undated statement, he reported a February 1987 incident while in the military, where he saw
an individual badly hurt while offloading equipment into boats. Appellant stated he was
diagnosed with PTSD. He indicated that he began work at the employing establishment in 2001,
and his job required him to review medical reports from all types of injuries, including death.
According to appellant, after reading some reports of traumatic injuries and surgeries, he would
become anxious, have panic attacks and difficulty sleeping. He alleged that his job duties
aggravated his PTSD.
With respect to medical evidence, on September 28, 2009 appellant submitted reports
from Dr. Marnie Burkman, a Veterans Administration psychiatrist, commencing
January 11, 2008. He also submitted a January 20, 2009 report from Dr. Nancy Franzoso, a
Veterans Administration psychiatrist. In a report dated October 22, 2009, Dr. Randolph Pock, a
psychiatrist, discussed appellant’s medical treatment and stated that exposure to accounts of
trauma at work exacerbated his sleep problems, caused nightmares and feelings of
“anxiety/pain/depression.” In a report dated December 2, 2009, Dr. James Allen, Board-certified
in occupational medicine, stated that appellant had seen a traumatic event and was reliving these
events, and his review of reports related to surgeries and trauma served as a trigger for his
symptoms. He stated that appellant could not read reports related to severe or traumatic injuries.
By decision dated December 22, 2009, the Office reviewed the case on its merits. It
found the factual evidence was insufficient, as appellant had made a “generalized and widely
encompassing description” of his work, and had provided “no details of instances in which he
experienced the claimed symptoms, nor any witness statements or other evidence to establish a
factual basis.”
On January 20, 2009 appellant requested reconsideration of his claim. In a January 20,
2010 statement, he discussed specific cases he had worked on and his emotional and physical
reaction. Appellant also submitted a January 29, 2010 report from Dr. Pock and an April 27,
2010 report from Dr. Allen. In a letter dated February 17, 2010, the employing establishment’s
supervisor stated that he could not confirm or deny appellant’s statements, noting that claim
numbers were not provided.

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In a decision dated July 1, 2010, the Office reviewed the case on its merits and denied
modification. It stated that there was no “evidence you were actually at the scene of the incident
and had first hand exposure to elements sufficient to support your allegations the review or
contacted sic affected your preexisting PTSD. Your statements were only generalized and
widely encompassing description and your employing establishment could not support your
description of the cases you highlighted in your statement.”
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the coverage
of workers’ compensation. These injuries occur in the course of the employment and have some
kind of causal connection with it but nevertheless are not covered because they are found not to
have arisen out of the employment. Disability is not covered where it results from an
employee’s frustration over not being permitted to work in a particular environment or to hold a
particular position, or secure a promotion. On the other hand, where disability results from an
employee’s emotional reaction to his regular or specially assigned work duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.4
ANALYSIS
The Office did not accept that appellant alleged and substantiated a compensable work
factor. Appellant’s claim, however, is that his regularly assigned job duties as a claims examiner
contributed to an emotional condition. He specifically identified the review of medical reports,
such as those involving severe traumatic injuries. The employing establishment confirmed that
appellant reviewed medical reports as part of the job duties for the positions he held since 2001.
While the Office finds that his statements are generalized, appellant identified specific
job duties in his federal employment. Moreover, he discussed some specific examples of the
types of cases that he alleged contributed to his condition. It is not clear why the Office referred
to a lack of evidence regarding appellant being “actually at the scene of the incident” or “first
hand exposure.” Appellant’s claim is that review of medical reports in his federal employment
aggravated a preexisting PTSD. He is not required to show that he was present at the incidents
involved in the medical reports he was reviewing. A claimant is required to identify and
2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

Lillian Cutler, 28 ECAB 125 (1976).

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describe the incidents at work he believed contributed to an emotional condition.5 And in this
case, appellant provided a detailed description of employment incidents. The Board finds that he
has identified regularly assigned job duties with respect to his claim. It is well established that
an emotional condition causally related to regularly assigned duties is compensable under the
Act.6
In addition, the Board notes that the Office referred to appellant’s statements “regarding
your review of a variety of cases without any case number.” The Office stated that without the
case numbers, the employing establishment could not confirm or deny the cases and had no
personal knowledge of any of the cases. The disclosure of information regarding specific cases
with case numbers raises Privacy Act issues.7 Appellant is not required to disclose potentially
protected information with respect to specific cases. He provided a detailed description of the
types of cases and the nature of the medical reports reviewed.
The Board finds that appellant has established compensable work factors in this case.
The case will accordingly be remanded to the Office for proper consideration of the medical
evidence on the issue of whether appellant has established a diagnosed condition causally related
to the identified compensable work factors.8 After such further development as the Office deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the evidence establishes a compensable work factor. The case is
remanded for a proper review of the medical evidence on the issue presented.

5

Supra note 3.

6

See Jeral R. Gray, 57 ECAB 611, 616 (2008).

7

See Federal (FECA) Procedure Manual, Part 1 -- Administration, Privacy Act, Chapter 1.400.3
(September 2007), noting that disclosure of file information is generally prohibited without consent of the claimant.
8

Jeral R. Gray, supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 1, 2010 is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: June 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT, Lebanon, PA, Employer
__________________________________________

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

Docket No. 07-2263
Issued: June 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 6, 2007 appellant, filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated July 10, 2007 regarding
her wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of dispatcher represented
her wage-earning capacity effective February 19, 2006.
FACTUAL HISTORY
On June 30, 1997 appellant, then a 49-year-old clerk, filed an occupational disease claim
alleging that she developed carpel tunnel syndrome due to writing and typing in the performance
of duty. She underwent a right carpal tunnel release on July 29, 1997. The Office accepted
appellant’s claim for right carpal tunnel syndrome and right carpal tunnel surgical release. Her

attending physician, Dr. Alexander Kalenak, a Board-certified orthopedic surgeon, performed a
second carpal tunnel release on July 31, 1998. The Office referred appellant for a second
opinion evaluation with Dr. R.S. Mathew, a Board-certified orthopedic surgeon, who opined that
appellant could consider returning to light work. The Office found a conflict of medical
evidence and referred appellant to Dr. George Kent, a Board-certified orthopedic surgeon, for an
impartial medical examination. In a report dated June 16, 1999, Dr. Kent found that appellant
was totally disabled due to her recurrent carpal tunnel syndrome.
In a report dated May 31, 2001, Dr. Jeffrey J. Backenstoes, an osteopath and appellant’s
physician, noted appellant’s history of injury and diagnosed mild persistent right carpal tunnel
syndrome “with a great deal of pain.” He opined that appellant was totally disabled.
The Office referred appellant for a second opinion evaluation on October 29, 2003 with
Dr. Perry Eagle, a Board-certified orthopedic surgeon. In a report dated November 18, 2003,
Dr. Eagle noted appellant’s history of injury and medical history. He completed a work capacity
evaluation and found that she could work eight hours a day with restrictions.
The Office referred appellant for vocational rehabilitation counseling on
December 9, 2003. The vocational rehabilitation counselor closed appellant’s file on August 5,
2004 and opined that appellant was capable of performing the duties of a dispatcher which
entailed reading and recording the coded signals received in the central station of an electrical
protective signaling system. This position required sedentary physical demands lifting up to 10
pounds and the ability to reach, handle, finger, feel, talk, hear and see. The vocational
rehabilitation counselor determined that this position was being performed in sufficient numbers
within appellant’s commuting area by contacting the State Employment Service.
Dr. Kalenak examined appellant on May 26, 2004 and July 20, 2004 and diagnosed
bilateral carpal tunnel syndrome based on positive Tinel’s sign bilaterally and atrophy of the
thenar and hypothenar muscles. He noted that electromyography (EMG) and nerve conduction
velocity testing were compatible with entrapment neuropathy along the median nerve bilaterally.
In a letter dated September 30, 2004, the Office proposed to reduce appellant’s
compensation benefits based on her capacity to earn wages as a dispatcher. By decision dated
March 10, 2005, the Office reduced appellant’s compensation benefits based on her capacity to
earn the wages of a dispatcher effective March 20, 2005.
Appellant requested a review of the written record on March 24, 2005. On July 20, 2005
the hearing representative set aside the Office’s March 10, 2005 decision and remanded the case
for referral to an impartial medical examiner to resolve the conflict in medical opinion between
Drs. Backenstoes and Eagle.
The Office referred appellant for an impartial medical examination with Dr. Daniel P.
Hely, a Board-certified orthopedic surgeon, on October 6, 2005. On October 14, 2005 Dr. Hely
reviewed the statement of accepted facts and performed a physical examination. He reported
that appellant had positive Phalen’s test and negative Tinel’s test over the carpal tunnel on the
left and that both tests were positive on the right. Dr. Hely noted that appellant had limited twopoint discrimination in both hands. He reviewed the physical requirements of a dispatcher and

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opined that the position was within appellant’s work abilities. Dr. Hely provided appellant’s
work restrictions indicating that she could work eight hours a day, sitting for eight hours,
walking for six hours, standing for six hours and reaching for four hours as well as reaching
above the shoulder for four hours. He stated that appellant could perform minimal repetitive
movements of the wrist and elbow of up to 10 pounds. Dr. Hely found that appellant could push,
pull and lift up to 10 pounds for one to two hours a day.
In a letter dated November 2, 2005, the Office proposed to reduce appellant’s
compensation benefits based on her capacity to earn wages as a dispatcher. The Office stated,
“Please note, this calculation is subject to change when we receive and review your employing
agency’s response to our request for the current pay rate for the job, grade and step you held on
the date of injury, May 30, 1997.” Appellant disagreed with this proposal on November 14,
2005 and alleged that she was unable to peel potatoes. She submitted reports dated May 24,
July 26, October 18 and November 10, 2005 from Dr. Shirley Albano-Aluquin, a Boardcertified rheumatologist, diagnosing fibromyalgia, osteoarthritis and carpal tunnel syndrome and
opining that appellant was totally disabled due to active fibromyalgia and arthritis.
The Office requested a supplemental report from Dr. Hely on November 25, 2005
addressing whether appellant’s alleged inability to peel potatoes had any effect on his opinion
that she could perform the selected position of dispatcher. On January 3, 2005 Dr. Hely
responded noting that the difficulty of peeling a potato resulted from the need for a “power grip
and repetitive use of the hand and wrist.” He stated that this task would be demanding for
someone with appellant’s condition. However, Dr. Hely concluded that the job of dispatcher did
not require similar tasks and that appellant could function in this position without aggravating
her condition.
By decision dated January 12, 2006, the Office determined that the position of dispatcher
represented appellant’s wage-earning capacity and reduced her compensation benefits effective
February 19, 2006. The Office noted that the employing establishment had not yet provided
appellant’s pay rate information and that when that information was received, the necessary
adjustments would be made to her compensation benefits. The Office calculated appellant’s
wage-earning capacity based on the January 1, 2005 pay rate for the job she held when injured of
$546.00 and concluded that she was entitled to compensation every four weeks in the amount of
$32.78. The Office requested updated pay rate from the employing establishment on
January 12, 2006.
Dr. Hely submitted a report dated January 11, 2006 and stated that the normal tasks of the
dispatcher position were well within appellant’s abilities. He noted that while appellant was
having difficulty peeling a potato, this was a forceful activity and such forceful activities were
not required by the dispatcher position.
Appellant requested a review of the written record on February 6, 2006. She submitted
an EMG study which revealed abnormal electrodiagnositic testing of the right upper extremity
compatible with moderate carpal tunnel syndrome. In a report dated January 27, 2006,
Dr. Albano-Aluquin diagnosed bilateral carpal tunnel syndrome as well as osteoarthritis,
fibromyalgia, diabetes and depression. She stated, “There is no doubt in my mind that

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[appellant’s] current condition precludes her from getting any gainful employment at the present
time.”
The Office issued an “Amended Reduction of Compensation” on May 11, 2006. The
Office stated that the finding that appellant was capable of performing the position of dispatcher
remained unchanged; however, it reduced her compensation benefits based on the current pay
rate with locality pay for the Philadelphia area in appellant’s date-of-injury position at the
appropriate grade and step appellant held at the time of her injury. This reduction was effective
March 19, 2006. The Office listed appellant’s date-of-injury pay rate as $418.40 and the rate of
pay for that position effective January 2006 as $610.06. The Office determined that appellant
was entitled to compensation for a loss of wage-earning capacity of $106.75 per week.1
By decision dated July 24, 2006, the hearing representative affirmed the January 12, 2006
wage-earning capacity determination. Appellant requested review of this decision by the Board.
In an Order Remanding Case dated March 13, 2007,2 the Board remanded the case for the
hearing representative to consider the May 11, 2006 amended decision of the Office. By final
decision dated July 10, 2007, the hearing representative affirmed the January 12 and May 11,
2006 decisions finding that the Office had properly determined appellant’s ability to perform the
duties of the selected position of dispatcher and that the current pay rate computed on May 11,
2006 was correct.3
LEGAL PRECEDENT
Under section 8115(a) of the Federal Employees’ Compensation Act,4 in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
actual earnings if actual earnings fairly and reasonable represent the wage-earning capacity.
Generally wages actually earned are the best measure of a wage-earning capacity and, in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.5 If the actual earnings do
not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no
actual earnings, his or her wage-earning capacity is determined with due regard to the nature of
the injury, the degree of physical impairment, his or her usual employment, age, qualifications

1

The record indicates that appellant thanked the claims examiner for the additional compensation.

2

Docket No. 06-1854 (issued March 13, 2007).

3

The hearing representative issued a similar decision on July 5, 2007 which contained a typographical error
regarding the name of appellant’s physician, Dr. Albano-Aluquin. She corrected this error in the July 10, 2007
decision. Following the hearing representative’s July 10, 2007 decision, appellant submitted additional new
evidence. As the Office did not consider this evidence in reaching a final decision, the Board may not review the
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
4

5 U.S.C. §§ 8101-8193, § 8115(a).

5

Selden H. Swartz, 55 ECAB 272 (2004).

4

for other employment, the availability of suitable employment and other factors and
circumstances which may affect wage-earning capacity in his or her disability condition.6
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick,7 and codified section 10.403(d) of the Office’s
regulations8 will result in the percentage of the employee’s loss of wage-earning capacity.
ANALYSIS
Appellant’s attending physicians, Dr. Kalenak, a Board-certified orthopedic surgeon, and
Dr. Blackenstoes, an osteopath, opined that appellant was totally disabled for work. The Office
referred appellant to Dr. Eagle, a Board-certified orthopedic surgeon, for a second opinion
evaluation. Dr. Eagle determined that appellant was capable of light-duty work with restrictions.
To resolve this conflict of medical opinion evidence, the Office referred appellant to Dr. Hely, a
Board-certified orthopedic surgeon.9
Dr. Hely based his report on the statement of accepted facts and his physical examination
of appellant. He noted that she had continued signs and symptoms of carpal tunnel syndrome,
but found that the selected position of dispatcher was within appellant’s work abilities. Dr. Hely
provided work restrictions which encompassed the duties of a dispatcher. In response to the
Office’s request for a supplemental report, he addressed appellant’s concerns regarding her
inability to peel potatoes and explained why this activity would be more challenging to appellant
than the requirements of a dispatcher. It is well established that, when a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on proper factual and medical background must be
given special weight.10 The Board finds that Dr. Hely’s reports are entitled to special weight.
He provided detailed physical findings and extensive review of appellant’s physical abilities in
6

Harley Sims, Jr., 56 ECAB 320, 323 (2005).

7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403(d).

9

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination. 5 U.S.C. §§ 8101-8193, 8123. The implementing regulation states that, if a conflict exists between the
medical opinion of the employee’s physician and the medical opinion of either a second opinion physician of an
Office medical adviser or consultant, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the appropriate specialty and
who has had no prior connection with the case. 20 C.F.R. § 10.321.
10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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his reports. Dr. Hely reasoned that appellant was capable of performing the duties of a
dispatcher despite her continuing medical residuals and work restrictions due to her accepted
employment injury.
Following Dr. Hely’s reports, appellant submitted a series of reports from Dr. AlbanoAluquin, a Board-certified rheumatologist, who diagnosed carpal tunnel syndrome as well as
fibromyalgia and osteoarthritis. Dr. Albano-Aluquin opined that appellant was totally disabled
due to the conditions of fibromyalgia and arthritis. These reports are not sufficient to overcome
the special weight accorded Dr. Hely’s reports or to create a new conflict. Dr. Albano-Aluquin
did not opine that appellant was totally disabled due to the accepted condition of carpal tunnel
syndrome and did not provide a detailed analysis of the tasks of dispatcher that appellant could
not perform due to her accepted employment-related condition.
The Office properly determined that appellant was capable of work based on the reports
of Dr. Hely, and properly relied upon the vocational rehabilitation counselor’s determination that
the position of dispatcher was within appellant’s education, age and prior experience. The
vocational rehabilitation counselor also determined that this position was reasonably available
through contact with the state employment service. Finally, the Office properly determined
appellant’s percentage of wage-earning capacity based on the best available source of the current
wages for her date-of-injury position.
CONCLUSION
The Board finds that the Office properly determined that the position of dispatcher
represented appellant’s wage-earning capacity.

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ORDER
IT IS HEREBY ORDERED THAT the July 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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